Guide to Proceedings Before the Immigration Division - Chapter 8: Right to Counsel


Chapter 8
RIGHT TO COUNSEL

  1. 8.1  INTRODUCTION
  2. 8.2  STATUTORY PROVISIONS
    1. 8.2.1  Minister's counsel
    2. 8.2.2  Counsel for the person who is the subject of the proceeding
      1. 8.2.2.1  Information concerning counsel
      2. 8.2.2.2  Withdrawal as counsel of record
      3. 8.2.2.3  Removal of counsel of record
  3. 8.3  PRINCIPLES FROM THE CASE LAW
    1. 8.3.1  Right to counsel before the hearing
    2. 8.3.2  Right to counsel at a hearing before the Immigration Division
      1. 8.3.2.1  Lawyer versus other counsel
      2. 8.3.2.2  In the absence of counsel
        1. 8.3.2.2.1  Admissibility hearing
        2. 8.3.2.2.2  Detention review
        3. 8.3.2.2.3  Admissibility hearing for a detained person
      3. 8.3.2.3  Counsel not ready to proceed
      4. 8.3.2.4  Incompetent counsel

8.  RIGHT TO COUNSEL

8.1  INTRODUCTION

The Act provides that the parties may be represented by a barrister or solicitor or other counsel. In addition, the Charter guarantees the right to counsel in certain circumstances.

This chapter discusses the statutory provisions concerning the right to counsel and the case law principles on the subject.

8.2  STATUTORY PROVISIONS

Subsection 167(1) of the Act provides for the right to be represented before the Board by a barrister or solicitor or other counsel. It is worded as follows:

167. (1) Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.Note 1

The English version is far more specific and clearly reflects the right of both parties to a barrister or solicitor or other counsel . The French version of subsection 167(1) reads as follows:

167. (1) L'intéressé peut en tout cas se faire représenter devant la Commission, à ses frais, par un avocat ou un autre conseil.

In addition, if a detention is involved, the right to counsel is guaranteed by section 10 of the Charter and paragraph 2(c)(ii) of the Canadian Bill of Rights:Note 2

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

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

(c) deprive a person who has been arrested or detained […]

(ii) of the right to retain and instruct counsel without delay […]

8.2.1  Minister's counsel

A number of public servants are designated to represent the Minister before the IRB. They are not necessarily lawyers. The Minister's counsel is sometimes, although rarely, accompanied by a lawyer from the Department of Justice who is also instructed to represent the Minister at the hearing. This may happen when complex questions of law are raised.

When two counsel represent the Minister at a hearing, the member should clarify the role of each at the outset of the hearing to avoid having two counsel who represent the same party intervene at every turn with regard to the same issue, which would complicate and needlessly prolong the proceeding. The two counsel may consult each other and take turns handling different issues, or they may decide that one of them will act as spokesperson throughout the proceeding. The same is true of counsel for the person who is the subject of the proceeding, if that person has more than one counsel [see section 8.2.2 - Counsel for the person who is the subject of the proceeding].

8.2.2  Counsel for the person who is the subject of the proceeding

The person who is the subject of the proceeding has a right to be represented by a barrister or solicitor or other counsel. "Other counsel" can be anyone. Sometimes, the person chooses to be represented by a family member or a friend who has no knowledge of IRB proceedings. In that case, the best approach is to explain counsel's role because, often, the family member or friend is there more to offer moral support to the person or to testify than to represent the person. In short, counsel's role is to give legal advice, to adduce evidence, including by examining witnesses, and to make submissions.

Some people act as "immigration consultants" for a fee. Such people generally have experience in immigration matters and do not need to have their role explained. The member should remain alert, however, because such people are not governed by rules of professional conductNote 3 [see also section 8.3.2.1 - Lawyer versus other counsel].

8.2.2.1  Information concerning counsel

The person who is the subject of the proceeding is usually informed by Citizenship and Immigration Canada of his or her right to be represented by a lawyer or other counsel at the hearing. The Notice to Appear (Rule 22) also refers to this. Consequently, counsel is often already counsel of record (Rule 13) and present on the day fixed for the hearing.

Under Rules 3(i) and 8(1)(f), the Minister must provide the Division's registry office with the contact information of counsel for the person who is the subject of the proceeding. Often, the person will not have obtained counsel at the time of the Minister's request for an admissibility hearing or a detention review, especially if the person has been arrested and detained. Rule 12 therefore provides that the person who is the subject of the proceeding must provide the Division and the Minister with counsel's contact information as soon as the person has obtained counsel and must inform them if that information changes. These provisions enable the registry office to contact counsel to fix a date and time for the hearing that will be convenient for the parties to the extent possible. In this way, it is possible to avoid an adjournment of the hearing on the grounds that counsel is not available.

Rules 13, 14 and 15 provide for the Division's recognition of counsel of record and the circumstances in which counsel ceases to be counsel of record. These provisions are applicable at any time between the receipt of the notice that a hearing is to be held and the conclusion of the hearing. It is important for counsel to be on the Division's record for, among other things, any application counsel may want to make before, during or after the hearing in connection with the case, especially if the hearing is held in private.

8.2.2.2  Withdrawal as counsel of record

According to Rule 14, counsel wanting to withdraw from a case must notify the Division and the Minister in writing as soon as possible. A withdrawal on the day of the hearing may result in an adjournment since the member will have to offer the person who is the subject of the proceeding the opportunity to retain and instruct another counsel. It may be that counsel cannot be prevented from withdrawing from a case,Note 4 but the member is entitled to ask for explanations for counsel's withdrawing at such a late date and should require written notification.

Occasionally, counsel decides to withdraw from a case simply because he or she did not obtain a favourable response to an application or an objection. Such conduct is reprehensible.Note 5 The member does not have the power to cite the counsel for contempt of court as a judge can, but the member may indicate that, in his or her opinion, such conduct demonstrates a lack of professionalism. Furthermore, if counsel is a lawyer, the member may remind counsel of his or her duties under the applicable rules of professional conduct. If counsel still decides to withdraw from the case, he or she should be asked to leave the hearing room immediately.

The person who is the subject of the proceeding should then be informed of his or her right to be represented by another counsel. If the person exercises this right, the hearing must be adjourned. In such circumstances, the member is entitled to refuse to allow the previous counsel to appear again when the hearing continues. The right of the person who is the subject of the proceeding to be represented by counsel of his or her choice is not unlimited. The person should be informed that he or she will have to appear with another counsel when the hearing continues. Depending on the circumstances, the member could fix a peremptory date for the continuation of the hearing [see also section 8.3.2 - Right to counsel at a hearing before the Immigration Division].

8.2.2.3  Removal of counsel of record

According to Rule 15, a person who wants to remove counsel of record must notify the Division and the Minister in writing as soon as possible. As in the case of a withdrawal by counsel of record, the removal of counsel on the day of the hearing should be an exceptional occurrence. If it happens, counsel must be asked to leave the hearing room. The member must then ask the person who is the subject of the proceeding whether he or she wants to retain and instruct another counsel. If the person wants to do so, the member will have to assess the credibility of the reasons given by the person for removing his or her counsel at the last minute and all the circumstances of the case. If, in the member's opinion, the reasons are frivolous and there are serious indications that the removal of counsel is just a delaying tactic, the member is justified in refusing to grant an adjournment so that another counsel can be obtained [see also section 8.3.2 - Right to counsel at a hearing before the Immigration Division].

8.3  PRINCIPLES FROM THE CASE LAW

8.3.1  Right to counsel before the hearing

The right to counsel at various stages of the immigration process has been raised in various cases, including Dehghani.Note 6 In that case, it was argued that denial of the right to a lawyer during the examinations conducted by immigration officers at the port of entry infringed the rights guaranteed by section 7 and paragraph 10(b) of the Charter.Note 7 The Supreme Court of Canada decided that questioning by an immigration officer at the port of entry is a routine part of the general screening process for persons seeking entry to Canada. The same is true of secondary examinations by immigration officers.Note 8

With respect to section 7 of the Charter, the Court decided that the principles of fundamental justice do not include a right to counsel for routine information-gathering purposes. However, the Court indicated that denial of the right to counsel during a hearing could constitute an infringement of the right guaranteed by section 7 of the Charter.

With regard to paragraph 10(b) of the Charter, the Court decided that, even if the person experienced restrictions on his or her freedom while waiting for his or her application to be processed, this is not a detention within the meaning of paragraph 10(b) of the Charter. When a person tries to enter Canada at a port of entry, the exact moment when the person is considered to be detained within the meaning of section 10 of the Charter is not clearly defined and depends on the circumstances of the case. In that regard, the Supreme Court of Canada cited the comments of Finlayson J. in Kwok:Note 9

Finlayson J.A. stated at p. 207 that "[s]urely there must be some action on the part of the immigration authorities to indicate that the restriction on an immigrant's freedom has gone beyond that required for the processing of his application for entry and has become a restraint of liberty such as that contemplated by Le Dain J.? in Therens [R v. Therens, [1985] 1 S.C.R. 613], supra. The court held that "the [accused] was detained when [the senior immigration officer], having filled out the detained convocation letter, invited the [accused] and [his co-accused] into his office with the intention of advising them of his decision to detain them". Finlayson J.A. apparently relied on the combination of a decision by the senior immigration officer to detain, and his action in calling the accused into his office to determine the point at which a detention had occurred for constitutional purposes.Note 10

In Dragosin,Note 11 the Federal Court set aside the exclusion order issued by an immigration officer because, among other things, the applicant's right to counsel had not been respected. Mr. Dragosin was questioned for the first time, by an officer on his arrival on November 3, 2001. He was then taken to the regional detention centre and, on November 5, 2001, he was questioned for the second time after which the officer issued the exclusion order. The Minister, relying on Dehghani, argued that the applicant's right to counsel arose only when the exclusion order was issued on November 5.

MacKay J. emphasized that the facts differed significantly in two respects from those in Dehghani. Mr. Dehghani was first examined and was then sent to another part of the airport, where he waited for four hours before undergoing a second examination. Before yet another examination, Mr. Dragosin waited for two days, during which time he was detained at the regional detention centre, which constituted a detention for constitutional purposes. His right to counsel arose at the moment that he was ordered to be detained at the regional correctional centre.

Section 7 of the Charter was apparently not raised as it had been in Dehghani. The issue of whether the principles of fundamental justice include the right to counsel when a person is not detained but is subject to an examination that could lead to the issuance of a removal order by an officer has therefore not been settled.

8.3.2  Right to counsel at a hearing before the Immigration Division

The right to counsel at a hearing before the Immigration Division is provided for in subsection 167(1) of the Act. In addition, as regards detention reviews , the right is guaranteed under section 10 of the Charter and paragraph 2(c)(ii) of the Canadian Bill of Rights.Note 12

In the case of examinations concerning persons who are not detained, the right to counsel is guaranteed by section 7 of the Charter. In Dehghani,Note 13 the Supreme Court of Canada wrote the following at page 1077 of the decision:

While the right to counsel under s. 7 may apply in other cases besides those which are encompassed by s. 10(b), for example in cases involving the right to counsel at a hearing , it is clear from my earlier comments that the secondary examination of the appellant at the port of entry is not analogous to a hearing. [Emphasis added.]

The member must ensure that the person who is the subject of the proceeding fully understands his or her rights and must give the person the opportunity to retain and instruct counsel. What constitutes an "opportunity" depends on the circumstances of each case. The case law on this subject varies greatly, each case being decided on its own merits.Note 14 However, some principles may be drawn from the case law;

  • The right to counsel of one's choice is not absolute.Note 15
  • The panel may try to help counsel, but it is not required to adjust to counsel's availability.Note 16
  • The panel must take into consideration the efforts made by the person who is the subject of the proceeding to be represented by counsel. Counsel's occasionally poor conduct cannot be imputed to a person in good faith.Note 17
  • In order to determine whether to grant an adjournment to enable the person who is the subject of the proceeding to be represented by counsel, the panel must consider all of the circumstances of the case and all relevant factors.Note 18

In Siloch,Note 19the Federal Court of Appeal listed the factors that the member should take into account in determining whether to grant an adjournment to permit the person to avail himself or herself of the right to be represented by counsel. These factors are not exhaustive:

  • whether the applicant (the person who is the subject of the proceeding) has done everything in his or her power to be represented by counsel;
  • the number of previous adjournments;
  • the length of time for which the adjournment is being sought;
  • the effect on the immigration system;
  • whether the adjournment would needlessly delay, impede or paralyse the conduct of the proceeding;
  • the fault or blame to be placed on the applicant (the person who is the subject of the proceeding) for not being ready;
  • whether any previous adjournments were granted on a peremptory basis;
  • any other relevant factors.

This case was decided under the former Immigration Act, but the principles continue to apply. At that time, the Rules were less clear on this issue. The member should also consider the factors set out in Rule 43 concerning applications to change the date or time of the hearing, some of which are similar to the factors listed by Décary  J. in Siloch [see also Chapter 10 - Changing the Date or Time of a Hearing].

8.3.2.1  Lawyer versus other counsel

While subsection 167(1) of the Act allows recourse to counsel other than a lawyer, the Charter guarantees the right to counsel. It is therefore necessary to ensure that the person who is the subject of the proceeding fully understands his or her right to a lawyer or other counsel. When counsel at the hearing is a lawyer, the member may simply acknowledge him or her as playing this role for the person who is the subject of the proceeding and proceed with the hearing. However, if counsel at the hearing is not a lawyer, the person who is the subject of the proceeding must be reminded of his or her right to be represented by a lawyer and should be asked to confirm that he or she has instructed the person accompanying him or her to act as his or her counsel. A person who freely decides to be represented by counsel other than a lawyer cannot argue later that his or her Charter rights have been infringed.

8.3.2.2  In the absence of counsel

When the person who is the subject of the proceeding is not accompanied by counsel, the member must inform the person of his or her right to be represented, at his or her own expense, by a barrister or solicitor or other counsel. Although the person who is the subject of the proceeding is, in principle, informed before the hearing of his or her right to be represented by counsel, it is not uncommon for the person to appear alone at the hearing. The person may not have been informed of his or her right to counsel or may not have understood. When the member informs the person who is the subject of the proceeding of his or her right to counsel at the hearing, the person may request an adjournment in order to take advantage of this right.

The person may also ask for an adjournment of the hearing because he or she has not obtained counsel who will represent him or her or because he or she has retained someone who is not available on the day of the hearing. A request for an adjournment to enable counsel to be present will be treated differently depending on whether an admissibility hearing or a detention review is involved [see sections 8.3.2.2.1 - Admissibility hearing and 8.3.2.2.2 - Detention review].

The member should proceed with the hearing if the person says that he or she does not want to be represented by counsel. In Pierre,Note 20 the Federal Court of Appeal wrote as follows at page 876:

In any proceeding, the person concerned, being aware or having been properly informed of his right to counsel, chooses to act on his or her own behalf, he or she cannot later attack the regularity of the proceedings because he was not represented by counsel. If his choice is to proceed personally, and he has rejected the opportunity to secure counsel, he has not been denied counsel.

Sometimes, the person would like to be represented by counsel, but cannot afford the cost.Note 21 Unless the person can call on an acquaintance in Canada who would be prepared to represent him or her at no cost, the person cannot avail himself or herself of this right. The person's lack of desire or his or her financial inability to exercise his or her right to counsel does not warrant an adjournment of the hearing.

8.3.2.2.1  Admissibility hearing

When the person who is the subject of the proceeding is not accompanied by counsel, it is usually appropriate to grant an initial adjournment to allow the person to obtain a lawyer or other counsel or, if the person has already retained counsel, to permit counsel to be at the hearing. A two-week delay is generally considered reasonable. Depending on the circumstances of the case, the delay could be a little longer. It could also be shorter if the person who is the subject of the proceeding is detained for investigation [see section 8.3.2.2.3 - Admissibility hearing for a detained person]. However, the right to counsel of one's choice is not unlimited. A person must choose a counsel who is able to appear within a reasonable time.Note 22

For this reason, the member should treat every subsequent request for an adjournment very firmly. The member should consider the factors listed in Rule 43 and assess the credibility and reasonableness of the person's explanations regarding the efforts he or she has made to obtain counsel who is available on the date fixed for the continuation of the hearing. If the member thinks that another adjournment should be granted, he or she should consider whether to fix a peremptory date for the continuation of the hearing.

8.3.2.2.2  Detention review

When the person who is the subject of the proceeding appears at the detention review alone, the member should inform the person of his or her right to be represented by a lawyer or other counsel. Even if the person clearly indicates a desire to be represented by counsel, it is often inappropriate to grant an adjournment to permit counsel to be present, unless counsel can be available quickly (in most cases, counsel should be available on the same day). When an adjournment would delay the review to the point that it could not be held within the time limit imposed by section 57 of the Act, the member must go ahead with the review in the absence of counsel. In such a case, the member should inform the detained person that the Act requires the member to observe certain time limits for a detention review. If the detention is continued, the person can be represented by counsel at the next 7-day, 30-day or early review (Rule 9).

8.3.2.2.3  Admissibility hearing for a detained person

Usually, an admissibility hearing for a detained person is fixed for the same date as the detention review. The hearing should be started, and the preliminary issues that can be addressed in the absence of counsel should be resolved as much as possible. These would include the need for an interpreter or a designated representative. The hearing may then be adjourned to permit counsel to be present, and the detention review is held in the absence of counsel. The date for the continuation of the admissibility hearing can be fixed after the end of the review to have it coincide with the next detention review, if appropriate.

8.3.2.3  Counsel not ready to proceed

Sometimes, the person who is the subject of the proceeding is accompanied by counsel who seeks an adjournment because he or she is not ready to begin or continue a hearing. A number of possible reasons may be given and the circumstances may vary. Just as in the case where counsel is absent, the member must evaluate all of the circumstances in the case and the factors listed in Rule 43 in order to determine whether to grant the adjournment requested [see also section 8.3.2.2 - In the absence of counsel]. The case law recognizes that this matter is fully within the discretion of the panel, as long as the panel gives the person who is the subject of the proceeding a reasonable opportunity to be represented by counsel of his or her choice. Since each case must be decided on its own merits, the case law varies considerably on this subject.Note 23 However, certain trends may be observed.

Generally, the fact that counsel is too busy or has professional or personal commitments is not in itself sufficient to justify an adjournment.Note 24 Counsel should provide detailed explanations to justify a request for an adjournment. In the absence of such explanations, the member should not hesitate to request them so that he or she can evaluate all of the circumstances of the case and all of the factors listed in Rule 43 in order to exercise his or her discretion in an informed manner.Note 25

In this respect, the comments of Reed J. at paragraphs 8 and 9 of ChinNote 26 are of interest:

[…] I look for some reason for the delay which is beyond the control of counsel or the applicant, for example, illness or some other unexpected or unanticipated event.

[…] counsel knew her client lived in Campbell River and that she would be attending the Bar Convention towards the end of August. The scheduling was under her personal control. Thus, it was hard for me to justify, in such circumstances, the granting of an extension of time.

In Farooq,Note 27 the request for an adjournment was based on the fact that counsel had to make an emergency trip abroad; the adjournment was refused because no explanation was given concerning the reasons for the trip.

In Pierre,Note 28 after counsel had withdrawn, another counsel argued that he could not proceed on the peremptory date fixed for the continuation of the hearing because he had other commitments and did not have time to familiarize himself with the procedures for admissibility hearings. When the member refused to grant the adjournment sought, that counsel withdrew and the member continued and concluded the hearing in the absence of counsel. The Federal Court of Appeal upheld the decision of the Special Inquiry Officer (the member). At page 855 of the decision, it wrote the following:

With reference to the question of counsel being ready to proceed, it must be recognized that every tribunal considering a request for an adjournment, whether faced with objections from parties opposing the adjournment or subject to a statutory duty to proceed with due expedition, must recognize the fact that submissions of counsel based on their not being ready to proceed or not being available to proceed must be weighed with care. It is, for example, not unknown for a party who does not desire to proceed to change counsel to obtain delay. Having regard to the course of events in this inquiry, particularly the fixing of a peremptory date after innumerable adjournments and attempts to agree on a date when counsel would agree to proceed, I am not prepared to say that the exercise of discretion under consideration was a wrong exercise of discretion.

Conversely, unforeseen personal obligations such as the illness or death of a family member or unanticipated events such as an accident may justify granting an adjournment.Note 29

For detention reviews, lawyers and other counsel working in the immigration field are generally familiar with the time limits imposed by section 57 of the Act and avoid seeking adjournments. Usually, they will ask instead for the time of the hearing to be changed. It is appropriate to assist them when possible, particularly in the case of a 48-hour or 7-day review.

In the end, administrative tribunals are the masters of their own procedures and granting an adjournment is a discretionary action. The member must be mindful of the duty imposed on him or her by subsection 162(2) of the Act—the duty to proceed as quickly as the circumstances and the considerations of fairness and natural justice permit—in this case, to ensure that the person who is the subject of the proceeding has a reasonable opportunity to be represented by counsel of his or her choice.

8.3.2.4  Incompetent counsel

In some circumstances, being represented by an incompetent counsel is a violation of the principles of natural justice and so may justify reopening the hearing.Note 30 It is an extremely delicate matter to determine that counsel is incompetent, particularly if counsel is a lawyer who is governed by professional rules of conduct and can be sanctioned by the law society to which he or she belongs. Furthermore, the case law indicates that superior courts refrain from intervening when counsel is a lawyer, except in the most unusual of circumstances, in the belief that the person has freely chosen his or her counsel, that the two are one and the same party and that the person can use the remedy provided by the law society concerned.Note 31 Fortunately, cases of incompetence are rare. In addition, as the case law indicates, only extraordinary facts can justify a finding that counsel is incompetent.

An example may be found in Sheikh,Note 32 where the Federal Court of Appeal found that counsel was incompetent; he had fallen asleep on three occasions during the hearing. In Shirwa,Note 33 the Federal Court also found that counsel was incompetent for the following reasons: (1) the refugee claimant had been led to believe that counsel was a lawyer; (2) counsel entered into evidence the Personal Information Form only; (3) counsel failed to make submissions; (4) the claimant's complaint to the law society was of limited use since the society could not take action against the counsel as he was not a lawyer.

In Huynh,Note 34 the lawyer who handled the judicial review argued that the representation by the other lawyer who had been present at the hearing before the Refugee Protection Division was inadequate for a number of reasons, including his poor preparation of the case, his failure to introduce all of the evidence and to make the appropriate submissions, and his lack of familiarity with refugee procedures. He relied on Sheikh. The Federal Court dismissed the application for judicial review. At paragraph 16 of the decision, the Court wrote the following:

In my view, the facts in Ali Sheikh, (supra), are quite extraordinary. While if it can be demonstrated that counsel slept during a proceeding, a party may not have been given reasonably effective assistance from counsel, I do not think the same conclusion may be drawn from the facts of this case. That the applicant's story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel.

In Ye,Note 35 the Immigration Appeal Division dismissed an application to reopen an appeal of a removal order. The applicant alleged that her counsel was incompetent because he failed to ask specific questions during the hearing and did not present adequate arguments. The Appeal Division stressed that counsel's incompetence must be egregious before a question of natural justice could be raised.

In practice, the member may occasionally observe that the person who is the subject of the proceeding is not being adequately represented, but it is not recommended that the member determine that counsel is incompetent, unless the level of incompetence is so great that it completely deprives the person of his or her right to be heard. In Shirwa,Note 36 at paragraph 11 of the decision, the Federal Court wrote the following:

In a situation where through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred (Mathon).Note 37

The level of incompetence must therefore be significant and obvious before it can be determined that counsel's incompetence constitutes a denial of natural justice. The member may make up for an inadequate representation by playing a more active role, in particular, by questioning the person who is the subject of the proceeding on certain issues that the member thinks are important for the decision that he or she has to make. However, the member must do this tactfully and respectfully. The member must avoid substituting himself or herself for counsel, which could cast doubt on the member's impartiality.Note 38


Table of Cases

  1. Acheampong, Peter Kwaku v. M.E.I. (F.C.T.D., 92-T-1794), Walsh, November 27, 1992
  2. Acquah, Agnes v. M.E.I. (F.C.T.D., 93-T-32), Rothstein, July 5, 1994
  3. Afrane v. Canada (M.E.I.) (1993), 20 Imm. L.R. (2d) 312
  4. Ali, Umer v. M.C.I. (F.C.T.D., IMM-5212-00, Dawson, March 7, 2002
  5. Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [1999] F.C.J. 1675, Blais, November 4, 1999
  6. Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [2000] F.C.J.No. 804, Dubé, June 1, 2000
  7. Calles v. Canada (M.E.I.) (1990), 12 Imm. L.R. (2d) 48
  8. Castroman (Vezzani), Carlos Adrian v. S.S.C. (F.C.T.D., A-1302-92), McKeown, June 20, 1994
  9. Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848
  10. Chin, Freddy Swee Ban v. M.E.I. (F.C.T.D., IMM-4045-93), Reed, October 8, 1993
  11. Dadi, Kamel v. M.C.I. (F.C.T.D., IMM-4195-98), Pinard, August 12, 1999
  12. Dehghani v. Canada (M.E.I.), [1993] 1 S.C.R. 1053
  13. Desousa v. Canada (M.E.I.) (1988), 5 Imm. L.R. (2d) 73
  14. Dias, Ernesto Fabian et al.v. M.C.I.(F.C.T.D., IMM-2593-01), Heneghan, January 27, 2003
  15. Dragosin, Beniamin v. M.C.I. (F.C.T.D., IMM-5261-01), MacKay, January 27, 2003
  16. Edumadze, Margaret v. M.E.I. (F.C.T.D., 92-T-1238), Rouleau, January 18, 1993
  17. Farooq, Tanvir v. M.C.I. (F.C.T.D., IMM-503-97), Blais, June 2, 1999
  18. Hundal, Manmohan Singh v. M.C.I. (F.C.T.D., IMM-3914-02), Dawson, July 16, 2003
  19. Huynh, Cam Hoa v. M.E.I. (F.C.T.D., 92-T-1772), Rothstein, June 24, 1993
  20. Kiani, Raja Ishtiaq Asghar v. M.C.I. (F.C.T.D., IMM-2879-96), Muldoon, December 20, 1996
  21. Mathon, Immacula v. M.E.I. (F.C.T.D., T-737-88), Pinard, August 15, 1988
  22. Nemeth, Imre Janos et al.v. M.C.I. (F.C.T.D., IMM-2522-02), O'Reilly, May 14, 2003
  23. Patrasc, Gabriel v. M.C.I. (F.C.T.D., IMM-5262-01), MacKay, January 27, 2003
  24. Pierre v. Canada (M.M.I.), [1978] 2 F.C. 849 (C.A.)
  25. Pilnitz, Viktor v. M.C.I. (F.C.T.D., IMM-1205-96), Tremblay-Lamer, March 7, 1997
  26. R.v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.)
  27. Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (C.A.)
  28. Shirwa v. Canada (M.E.I.), [1994] 2 F.C. 51
  29. Siloch, Hancy v. M.E.I. (F.C.A., A-88-92), Stone, Desjardins, Décary, January 11, 1993
  30. Tokar, Milan v. M.C.I. (F.C.T.D., IMM-308-02), Beaudry, January 24, 2003
  31. Yap, Sao Tim v. M.E.I. (F.C.T.D., 92-T-720), Teitelbaum, October 15, 1992
  32. Ye, Ai Hua v. M.C.I. (I.A.D. VA1-01247), Wiebe, August 5, 2003

Notes

Note 1

With regard to the French version of subsection 167(1), it might be wondered who the "intéressé" is before the Immigration Division. The logical answer would be that it is the Minister, since the person who is the subject of the proceedings has no interest in being the subject of an admissibility hearing with a view to his or her removal from Canada or in being detained. The French term is somewhat overused in the Act and Regulations. It refers to the parties in subsection 167(1) of the Act (see the English version). However, it is used, particularly in subsection 167(2), in relation to the designation of a representative, and in several places in the Regulations (see, for example, sections 246 and 247) to designate the person who is the subject of the proceeding before the Division.

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Note 2

8-9 Eliz. II, c. 44; R.S.C. 1985, App. III.

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Note 3

The Minister has announced the creation of a new self-regulating independent agency, the Immigration Consultants of Canada Regulatory Council (ICCRC) on June 30, 2011.

See also Shirwa v. Canada (M.E.I.), [1994] 2 F.C. 51. In this case, the Federal Court allowed the application for judicial review for several reasons, including counsel's incompetence. Counsel was not a lawyer, and the Court emphasized that "t he applicant was led to believe that Mr. Flynn was a lawyer and this misrepresentation was not corrected at the hearing."

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Note 4

Rule 14 provides that counsel ceases to be counsel of record as soon as the Division receives the notice of withdrawal. The withdrawal of counsel of record is not to be confused with the withdrawal of a case, which can lead, according to subsection 168(2) of the Act, to an abuse of process [for more details, see Chapter 14 - Decisions and Reasons].

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Note 5

See, for example, Acquah, Agnes v. M.E.I. (F.C.T.D., 93-T-32), Rothstein, July 5, 1994; Castroman (Vezzani), Carlos Adrian v. S.S.C. (F.C.T.D., A-1302-92), McKeown, June 20, 1994.

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Note 6

Dehghani v. Canada (M.E.I.), [1993] 1 S.C.R. 1053.

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Note 7

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

10. Everyone has the right on arrest or detention

[…]

(b) to retain and instruct counsel without delay and to be informed of that right; […]

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Note 8

At the port of entry, the primary examination is usually conducted by the customs officer, who acts, among other things, as an immigration officer. If the customs officer has doubts concerning the admissibility of the person whom he or she is questioning, the officer directs the person to a Citizenship and Immigration Canada officer for a second examination that constitutes the "secondary examination." Sometimes, the person may undergo a third examination by another immigration officer; this is also part of the "secondary examination."

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Note 9

R.v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.).

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Note 10

Supra, note 6, p. 1068.

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Note 11

Dragosin, Beniamin v. M.C.I. (F.C.T.D., IMM-5261-01), MacKay, January 27, 2003. See also Patrasc, Gabriel v. M.C.I. (F.C.T.D., IMM-5262-01), MacKay, January 27, 2003.

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Note 12

Supra, note 2.

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Note 13

Supra, note 6.

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Note 14

See for example Yap, Sao Tim v. M.E.I. (F.C.T.D., 92-T-720), Teitelbaum, October 15, 1992; Acheampong, Peter Kwaku v. M.E.I. (F.C.T.D., 92-T-1794), Walsh, November 27, 1992; Siloch, Hancy v. M.E.I. (F.C.A., A-88-92), Stone, Desjardins, Décary, January 11, 1993; Edumadze, Margaret v. M.E.I. (F.C.T.D., 92-T-1238), Rouleau, January 18, 1993; Ali, Umer v. M.C.I.(F.C.T.D., IMM-5212-00, Dawson, March 7, 2002; Tokar, Milan v. M.C.I. (F.C.T.D., IMM-308-02), Beaudry, January 24, 2003.

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Note 15

Tokar, Milan v. M.C.I., supra, note 14; Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [2000] F.C.J.No. 804, Dubé, June 1, 2000; Dadi, Kamel v. M.C.I. (F.C.T.D., IMM-4195-98), Pinard, August 12, 1999; Pilnitz, Viktor v. M.C.I. (F.C.T.D., IMM-1205-96), Tremblay-Lamer, March 7, 1997; Afrane v. Canada (M.E.I.) (1993), 20 Imm. L.R. (2d) 312.

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Note 16

Aseervatham, Vimalathas v. M.C.I., supra, note 15; Nemeth, Imre Janos et al.v. M.C.I. (F.C.T.D., IMM-2522-02), O'Reilly, May 14,2003.

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Note 17

Siloch, Hancy v. M.E.I., supra, note 14; Calles v. Canada (M.E.I.) (1990), 12 Imm. L.R. (2d) 48; Desousa v. Canada (M.E.I.) (1988), 5 Imm. L.R. (2d) 73.

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Note 18

Siloch, Hancy v. M.E.I., supra, note 14; Dias, Ernesto Fabian et al.v. M.C.I. (F.C.T.D., IMM-2593-01), Heneghan, January 27,2003.

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Note 19

Supra, note 14, p. 2.

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Note 20

Pierre v. Canada (M.M.I.), [1978] 2 F.C. 849 (C.A.); see also Nemeth, Imre Janos et al.v. M.C.I., supra, note 16.

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Note 21

In some provinces, certain people may be entitled to legal aid. In principle, waiting for confirmation of legal aid does not justify adjourning the hearing. On this matter, see Kiani, Raja Ishtiaq Asghar v. M.C.I. (F.C.T.D., IMM-2879-96), Muldoon, December 20, 1996. In that case, Muldoon  J. wrote in paragraph 5 of the decision: "It has been said many times that waiting for confirmation of legal aid is not an adequate excuse for allowing a prescribed time limit to pass. This principle is virtually inscribed in stone."

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Note 22

Pierre v. Canada (M.M.I.), supra, note 20. See Jackett J. at pages 857-858 and Kelly J. at page 876; Pilnitz, Viktor v. M.C.I., supra, note 15; Aseervatham, Vimalathas v. M.C.I., supra, note 15; Tokar, Milan v. M.C.I., supra, note 14.

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Note 23

Supra, note 14.

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Note 24

Supra, notes 16 and 22.

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Note 25

See Dias, Ernesto Fabian et al.v. M.C.I., supra, note 18. In that case, the Federal Court allowed the application for judicial review. It found that the panel had taken into account only the fact that the date of the hearing had been fixed peremptorily. Nothing indicated that the panel had taken the other factors into account.

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Note 26

Chin, Freddy Swee Ban v. M.E.I. (F.C.T.D., IMM-4045-93), Reed, October 8, 1993.

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Note 27

Farooq, Tanvir v. M.C.I. (F.C.T.D., IMM-503-97), Blais, June 2,1999.

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Note 28

Supra, note 20.

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Note 29

See, for example, Aseervatham, Vimalathas v. M.C.I. (F.C.T.D., IMM-1091-99), [1999] F.C.J. 1675, Blais, November 4, 1999.

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Note 30

There is no statutory provision governing the reopening of a hearing before the Immigration Division. This is not the case for the other two IRB divisions. [For the Immigration Appeal Division, see section 71 of the Act and for the Refugee Protection Division, see Rule 55 of the Refugee Protection Division Rules, SOR/2002-228]. However, in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, pp. 860 to 864, the Supreme Court of Canada decided that an administrative tribunal may reopen a proceeding in order to correct a breach of the principles of natural justice.

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Note 31

See, for example, Chin, Freddy Swee Ban v. M.E.I., supra, note 26; Huynh, Cam Hoa v. M.E.I. (F.C.T.D., 92-T-1772), Rothstein, June 24, 1993.

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Note 32

Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (C.A.).

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Note 33

Supra, note 3.

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Note 34

Huynh, Cam Hoa v. M.E.I., supra, note 31.

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Note 35

Ye, Ai Hua v. M.C.I. (I.A.D. VA1-01247), Wiebe, August 5, 2003.

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Note 36

Supra, note 3.

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Note 37

Reference to Mathon, Immacula v. M.E.I. (F.C.T.D., T-737-88), Pinard, August 15, 1988.

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Note 38

See Hundal, Manmohan Singh v. M.C.I. (F.C.T.D., IMM-3914-02), Dawson, July 16, 2003.

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