Ernewein v. Minister of Employment and Immigration

Ernewein v. Minister of Employment and Immigration
Collection
Supreme Court Judgments
Date
1979-12-13
Report
[1980] 1 SCR 639
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves; McIntyre, William Rogers
On appeal from
Federal Court of Appeal
Subjects
Appeal
Immigration
Decision Content
Supreme Court of Canada
Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639
Date: 1979-12-13
Zofia Janina Ernewein Appellant;
and
The Minister of Employment and Immigration Respondent.
1979: June 14; 1979: December 13.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Immigration—Deportation order—Appeal refused by Immigration Appeal Board—Application for leave to appeal to Federal Court dismissed—Appeal to Supreme Court of Canada by leave—Appeal quashed—Federal Court Act, R.S.C 1970 (2nd Supp.), c. 10, s. 31 as am. 1974-75-76 (Can.), c. 18, s. 9(2)—Immigration Appeal Board Act, R.S.C. 1970, c. I-3 as enacted 1973-74 (Can.), c. 27, s. 5.
Appeal—Refusal of leave by Federal Court—Discretion of intermediate appellate court—Whether leave to appeal may be sought from Supreme Court of Canada—Jurisdiction of Supreme Court of Canada—Appeal quashed—Supreme Court Act, R.S.C 1970, c. S-19, s. 41 as am. 1974-75-76 (Can.), c. 18, s. 5.
Appellant was born in Warsaw, Poland, and is a citizen of that country. She was admitted to Canada as a visitor on December 24, 1973, and remained here after the expiry of the time allowed her as a visitor. Following an inquiry under the Immigration Act she was ordered deported. She filed notice of appeal to the Immigration Appeal Board claiming refugee status pursuant to s. 11(1)(c) of the Immigration Appeal Board Act. The Board considered the required statutory declaration in support of her claim to be a refugee and concluded, without permitting her to give additional evidence or to make additional submissions, that the appeal should be refused and the order of deportation executed as soon as practicable, in effect deciding in accordance with s. 11(3) that there were no reasonable grounds to believe that the claim of refugee status could be substantiated. On the application for leave to appeal to the Federal Court of Appeal, a statutory requirement, it was charged that there had been a denial of natural justice. That Court however dismissed the application without recorded reasons. Appellant then applied to this Court under s. 31(3) of the Federal Court Act for leave to appeal from the refusal of leave by the Federal Court of Appeal. Leave was given enabling this Court to consider in light of the amended s. 31(3) whether such an appeal can competently be entertained.
Held (Pigeon, Beetz and Pratte JJ. dissenting): The appeal should be quashed.
Per Laskin C.J. and Martland, Ritchie, Dickson, Estey and McIntyre JJ.: While leave to appeal was granted, this Court has long taken the position that the granting of such leave does not preclude the Court on the hearing of the appeal from reconsidering whether the appeal should be heard. The scheme of appellate review by intermediate appellate courts, whose decisions in turn are appealable here, distinguishes between cases where the appeal is as of right and cases where the appeal cannot come on without leave previously obtained. In the former set of cases the intermediate appellate court cannot refuse to hear the appeals but in the latter it has the power to screen. An ultimate appellate court such as the Supreme Court of Canada should respect this differentiation and recognize that the legislative policy behind it is to leave it to the intermediate appellate court to decide, where leave to appeal is a precondition, whether to entertain it. If it decides that it will not that should end the matter unless there is more commanding language than is found in ss. 31(3) and 41(1) to warrant this Court’s interference with what is a discretionary determination to refuse to allow an appeal to proceed.
Per Pigeon, Beetz and Pratte JJ. dissenting: In the present case no indication was given to the appellant of the reasons for which her claim to refugee status was denied. The Immigration Appeal Board is not an administrative agency but a court of record and must be subject to the rule that it is not enough that justice be done, it must appear to be done. The audi alteram partem principle is a rule of natural justice so firmly adopted that it applies to all who fulfil judicial functions and is not to be excluded by inference. While the validity of the Board’s “judgment” is not directly in question it is essential to consider that here the adjudication of a claim was done without any semblance of due process. The Federal Court of Appeal seems simply to have followed its established precedents in denying leave. In particular Minister of Manpower and Immigration v. Fuentes, [1974] 2 F.C. 331, should be questioned, as effectively denying rights contemplated in the “U.N. Refugee Convention” and substituting therefor the discretion of the Immigration Appeal Board. The question is of major importance but will remain foreclosed unless this Court can grant leave from the denial of leave by the Federal Court of Appeal. The effect will be to exclude all possibility of a review of the Fuentes case by this court.
The right of appeal to this Court in this case depends on s. 31 of the Federal Court Act of which subs. 31(1), now repealed, gave a right of appeal to the Supreme Court from a “final judgment” of the Federal Court of Appeal in some cases and the definition of “final judgment” remains in s. 2 and means “any judgment or other decision that determines in whole or in part any substantive right…” It is apparent that in subss. 31(2) and 31(3) “Final or other judgment” includes any other decision of the Federal Court of Appeal. As both subsections also apply to any “determination” there is no reason to narrow the wide meaning of the words to exclude decisions such as the order here in question.
It is important to note the continuous expansion of the provision in the Federal Court Act governing appeals to this Court. In the Exchequer Court Act prior to 1949, such appeal lay only from a final judgment or a judgment upon a demurrer or point of law raised by the pleadings. In 1949, this was extended to include appeal with leave from an interlocutory judgment. The use in s. 31 of the present Act of the words “final or other judgment or determination” indicates the will of Parliament to broaden still more, rather than to restrict, the scope of the provision allowing appeals by leave. It is important for this Court in the discharge of its general duty vis-à-vis the application of the law throughout Canada to avoid putting any important question of law beyond possibility of review.
[Canadian Cablesystems (Ontario) Ltd. v. Consumers Association of Canada et al., [1977] 2 S.C.R. 740; Lane v. Esdaile, [1891] A.C. 210; Canadian Utilities Ltd. et al. v. Deputy Minister of National Revenue for Customs and Excise, [1964] S.C.R. 57; Paul v. The Queen, [1960] S.C.R. 452, referred to; see also Procedure Directive of the House of Lords dated March 6, 1979, noted in [1979] 2 All E.R. 224.] APPEAL from a refusal, without written or recorded reasons, of the Federal Court of Appeal to grant leave to appeal to that Court from a decision of the Immigration Appeal Board refusing, also without written or recorded reasons, and without permitting the appellant to give additional evidence or to make additional submissions, an appeal from a deportation order. Appeal quashed, Pigeon, Beetz and Pratte JJ. dissenting.
George W. Alexandrowicz, for the appellant.
J.A. Scollin, Q.C., and D.F. Friesen, for the respondent.
The judgment of Laskin C.J. and Martland, Ritchie, Dickson, Estey and McIntyre JJ. was delivered by
THE CHIEF JUSTICE—The full Court is concerned in this appeal with a question of jurisdiction relating to the right of the Court to give leave to appeal and, consequently, to entertain an appeal from the refusal of the Federal Court of Appeal to give leave to appeal to that Court from a decision of an inferior tribunal, in this case the Immigration Appeal Board. The question arises under s. 31(3) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as enacted by 1974-75-76 (Can.), c. 18, s. 9(2), but the same question can arise under s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended by 1974-75-76 (Can.), c. 18, s. 5, in respect of the refusal of a provincial Court of Appeal to entertain an appeal to itself by refusing required leave.
The appellant before this Court, admitted to Canada as a visitor, was ordered to be deported following an inquiry under the Immigration Act, R.S.C. 1970, c. I-2. She filed a notice of appeal to the Immigration Appeal Board, claiming refugee status pursuant to s. 11(1)(c) of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3, as enacted by 1973-74 (Can.), c. 27, s. 5. The Board, acting under s. 11(3) of its above-mentioned Act, considered the required statutory declaration in support of the appellant’s claim to be a refugee under the Act and concluded, without permitting the appellant to give additional evidence or to make additional submissions, that the appeal should be refused and the order of deportation executed as soon as practicable. In effect, the Board decided, in accordance with the prescriptions of s. 11(3), that there were no reasonable grounds to believe that the claim of refugee status could, upon the hearing of the appeal, be established and hence refused to allow the appeal to proceed. It was charged against the Board on an application for leave to appeal to the Federal Court of Appeal, such leave being a statutory requirement, that there had been a denial of natural justice to the appellant. The Federal Court of Appeal dismissed the application for leave without written reasons.
The appellant thereupon applied to this Court under s. 31(3) of the Federal Court Act for leave to appeal from the refusal of the Federal Court of Appeal to grant leave to appeal from the adverse ruling of the Immigration Appeal Board. Leave was given, thus enabling this Court to consider, in light of the amended s. 31(3), whether such an appeal can competently be entertained. I should note that this Court has for long taken the position that the granting of leave to appeal thereto does not preclude it, on the hearing of the appeal, from reconsidering whether the appeal should be heard: see Canadian Cablesystems (Ontario) Ltd. v. Consumers’ Association of Canada et al.[1] The Court said this in the Cablesystems case at p. 742:
It should be emphasized that it is no longer enough to establish that a lis of some sort exists to oblige this Court to hear an appeal, as was the case when appeals came here as of right. Since leave is now required (and has been required since January 25, 1975) in all civil matters, the Court will give leave to come here in such matters only if the applicant for leave makes out a case under s. 41 of the Supreme Court Act, as enacted by 1974-75-76 (Can.), c. 18, s. 5. Although it will be rarely that this Court, leave having been granted, will thereafter refuse to entertain the appeal on the merits, its power to do so is undoubted, whether leave is obtained from a provincial Court of Appeal or from the Federal Court of Appeal or from this Court itself. Certainly, if the lis has disappeared or the substratum of the appeal has been removed when it comes on for hearing, this Court would ordinarily refuse to hear it and, so too, if the want of jurisdiction of this Court to hear it is established.
Section 31(3) of the Federal Court Act reads as follows:
(3) An appeal lies to the Supreme Court from a final or other judgment or determination of the Federal Court of Appeal, whether or not leave to appeal to the Supreme Court has been refused by the Federal Court of Appeal, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment or determination is accordingly granted by the Supreme Court.
The only applicable definition provision is that of “final judgment” found in s. 2 of the Act and in these terms:
“final judgment” means any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;
It is convenient at this point to bring into focus s. 41 of the Supreme Court Act, above referred to, which is as follows:
41. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other jugdment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from such judgment is accordingly granted by the Supreme Court.
(2) Leave to appeal under this section may be granted during the period fixed by section 64 or within thirty days thereafter or within such further extended time as the Supreme Court or a judge may either before or after the expiry of the thirty days fix or allow.
(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
(4) Whenever the Supreme Court has granted leave to appeal, the Supreme Court or a judge may, notwithstanding anything in this Act, extend the time within which the appeal may be allowed.
Applicable definitions of terms used in s. 41 are found in s. 2(1) of the Supreme Court Act, and I refer to the following terms therein:
“appeal” includes any proceeding to set aside or vary any judgment of the court appealed from;
…
“final judgment” means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;
…
“judgment”, when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof; and when used with reference to the Supreme Court, includes any judgment or order of that Court;
“judicial proceeding” includes any action, suit, cause, matter or other proceeding in disposing of which the court appealed from has not exercised merely a regulative, administrative, or executive jurisdiction;
It will be noticed that there is a difference in the wording of the relevant portion of s. 31(3) respecting an appeal here by leave of this Court from the Federal Court of Appeal and of s. 41(1) respecting an appeal by leave of this Court from a provincial appellate court. Section 31(3) speaks of “a final or other judgment or determination of the Federal Court of Appeal”, whereas s. 41(1) speaks only of “any final or other judgment of the highest court of final resort in a province…” I do not think that the difference warrants any different conclusion on the issue presented here where an appeal is sought to be taken from the Federal Court of Appeal rather than from a provincial court of appeal. This Court certainly has the final word (subject to what Parliament may prescribe) on the meaning to be found in the words “final or other judgment or determination” and in the words “final or other judgment”. There is, in my view, little profit to be derived from searching dictionary meanings. At bottom, the question presented here is one of the policy that this Court should follow, having regard to its broad ultimate authority to decide for itself what cases it should hear.
I do think, however, that some consideration must be given to the term “substantive right” which appears in the definition of “final judgment” in the Federal Court Act and in the definition of the similar phrase in the Supreme Court Act. It connotes to me that the Court appealed from has pronounced on the merits of an appeal which it has decided to entertain but, of course, I am aware of the fact that both s. 31(3) and s. 41(1) would support a wider assessment because of the words “other judgment or determination” in s. 31(3) and the words “other judgment” in s. 41(1). It is nonetheless not difficult to envisage situations which satisfy those words, as, for example, judgments in interlocutory matters, which would give them subject matter without including cases in which the intermediate appellate court has refused to entertain an appeal altogether by refusing required leave.
On the other hand, a refusal of leave may decide nothing about substantive or interlocutory issues but only that the case is not one to be brought forward. That is the usual formula which this Court adopts when it refuses leave. Of course, the Court from which leave is sought may think the decision below is plainly correct and refuse leave on that ground or that, on the facts, it does not raise a sufficiently important issue to be brought forward or that the grounds on which leave is sought would not, even if supported, be dispositive of the appeal. There are so many considerations that enter into a refusal to give leave as to make the matter one peculiarly for the experienced judgment of the Court from which leave is sought.
The scheme of appellate review by intermediate appellate courts, whose decisions in turn are appealable here, distinguishes between cases where the appeal to them is as of right and where the appeal cannot come on to be heard unless leave to appeal is previously obtained. In the one set of cases, the intermediate appellate court cannot refuse to hear the appeals but in the other set it is empowered to screen out those cases which it decides not to hear on any of the issues sought to be brought forward for hearing on the merits. In my view, an ultimate appellate court like the Supreme Court of Canada should respect this differentiation prescribed for courts below, and should recognize that the legislative policy which supports the differentiation is to leave it to the intermediate appellate court to decide, where leave to appeal is a precondition of an appeal to it on the merits, whether it will entertain it. If it decides that it will not, that should end the matter so far as any further appeal here is concerned, unless there is more commanding language than is found in ss. 31(3) and 41(1) to warrant this Court’s interference with what is a discretionary determination to refuse to allow an appeal to proceed.
It is my view that considerations of judicial comity should operate in this respect, and I do not think they should depend oil whether or not reasons are given for refusing to hear an appeal. There is, of course, the concern, expressed by the appellant’s counsel in his argument before this Court, that the refusal of leave by an intermediate court of appeal (perhaps in obedience to a line of previous decisions which are allegedly wrong) would, if accepted as determinative so far as a further appeal here is concerned, prevent this Court from exercising its ultimate authority to set the law right. I am not fearful of any want of good faith in intermediate appellate courts, nor is there any reason to doubt their competence in matters confided to them. Even this Court does not neces- sarily bring on appeals to it merely because it doubts the correctness of the judgment to be appealed. There is, in my experience, little likelihood of a stoppage of issues from coming here when it is important that they be heard; and there is, of course, the fact that would-be appellants are prone to find more merit in their positions than was seen by the intermediate appellate court which denied them leave to bring their cases to that court.
There is relevant authority in the House of Lords and in this Court for a refusal to entertain an appeal or to give leave to appeal from a refusal of the court appealed from to give leave for the case to come before it. In Lane v. Esdaile[2], the applicable legislation was quite different from that involved here, but the case did concern a refusal of the Court of Appeal to give special leave to appeal a High Court judgment and an application to the House of Lords against that refusal. In refusing the application for leave (because of the expiry of the time limit for appealing under an applicable order and rule), the Court of Appeal made no order but it was contended that the refusal was “an order or judgment” within the meaning of the Appellate Jurisdiction Act, 1876 (Imp.), c. 59, s. 3, which provided for an appeal to the House of Lords “from any order or judgment” of the Court appealed from. A preliminary objection was taken that no appeal lay to the House of Lords from the Court of Appeal’s refusal of leave to come to it. The objection was maintained by the House. I think the whole of the reasons of Lord Halsbury are pertinent here, and they are as follows, at pp. 211-213:
My Lords, I am of opinion that this preliminary objection ought to prevail. An appeal is not to be presumed but must be given. I do not mean to say that it must be given by express words, but it must be given in some form or other in which it can be said that it is affirmatively given and not presumed. In the particular case now before your Lordships the appeal is certainly not given in express words. The words used are “leave of the Court”; and although it may be that in some sense the leave of the Court, whether it is given or withheld, becomes an order (that I will not stay to discuss), that is not the ordinary mode in which it would be described. It is to be something that is done by the order of the Court. I confess myself I should hesitate if it was only to turn upon the question of language, because although a thing might be called an order, or might be called a judgment, or might be called a rule, or might be called a decree, it might well be that nevertheless by reason of the context it would come within the obvious meaning and purpose of the statute; so that although it was no one of those things in name it might be one of those things in substance, and therefore would come within the general provision that an appeal should lie.
But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal—that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal. My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction. My Lords, I confess that when I look both at the subject-matter with which the order deals and at the language of the order itself it seems to me obvious that it was intended that the decision should be final (whether that is said in terms or not seems to me to be immaterial), unless the Court of Appeal, the body there prescribed, in the exercise of that jurisdiction should give leave to appeal. As no leave has been given in this case, and as no appeal can be brought unless leave has been given, I am of opinion that this preliminary objection ought to prevail…
The logic of Lord Halsbury’s observation that if a refusal to give leave to appeal is appealable so must be the granting of leave, is unassailable. Indeed, what it points up is an obliteration of the distinction in the operation of an intermediate appellate court between cases which it chooses to hear on the merits and those in which it either refuses to grant leave or those in which, leave having been granted, an appeal is sought to be taken further from the refusal or grant, as the case may be. In my opinion there must be compelling language in the applicable legislation—and I do not find it here—before such a result can be tolerated. It may be contended that since this Court has asserted, as in the Cablesystems case, that the granting of leave by an intermediate appellate court to bring a case here does not foreclose this Court from deciding that the appeal should not proceed, this is tantamount to entertaining an appeal from the granting of leave. It is not so. The granting of leave to come here relates to proceedings in this Court with reference to cases already heard by the intermediate court of appeal and has nothing to do with the issue in the present case, which is concerned with an appeal from an intermediate court of appeal’s refusal of leave to have a case come before it for disposition on the merits.
The judgment in Lane v. Esdaile was applied by this Court in Canadian Utilities Ltd. et al. v. Deputy Minister of National Revenue for Customs and Excise[3], where Cartwright J., as he then was, spoke for the Court on a motion to quash an appeal from a judgment of Thorson P. of the Exchequer Court refusing to grant leave to appeal from a declaration of the Tariff Board. Thorson P. later gave written reasons for his refusal to grant leave, stating that no question of law was involved to found jurisdiction and, in any event, it was not the kind of case in which leave should be given. The basis for an appeal to this Court was founded on s. 58 of the Excise Tax Act, R.S.C. 1952, c. 100 and s. 82 of the Exchequer Court Act, R.S.C. 1952, c. 98, which provided, respectively, for an appeal to the Exchequer Court by its leave from a declaration of the Tariff Board and for a further appeal to this Court from a final judgment or a judgment of the Exchequer Court upon a demurrer or point of law and, with leave of a Judge of this Court, from an interlocutory judgment of that Court. The appeal here was asserted as of right, and in quashing it Cartwright J. held the reasoning in Lane v. Esdaile, supra, to be decisive. After referring to a number of other cases in this Court, Cartwright J. said, at p. 63:
It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.
I agree with this view as equally applicable to s. 31(3) and s. 41(1). I would refer also to the Editor’s note at the end of the reasons in the Canadian Utilities case pointing out that, subsequently, leave to appeal was sought to come here and that Cartwright J., who heard the application, stated that since there was no appeal from the decision of the Exchequer Court, there was no jurisdiction in this Court to grant leave therefrom.
I would refer also to one other applicable authority in this Court. In Paul v. The Queen[4], this Court, sitting as a bench of seven, considered whether it had jurisdiction under s. 41 of the Supreme Court Act, R.S.C. 1952, c. 159, as it then stood, to grant leave to appeal in a summary conviction matter (which was outside of the provisions for appeal to this Court under the Criminal Code) where the Ontario Court of Appeal had refused leave to appeal to that court from a judgment of the County Court. The County Court had dismissed an appeal from a conviction of impaired driving, holding that it had no jurisdiction to proceed with the appeal to it, agreeing with the Crown’s preliminary objection to the notice of appeal. The Court of Appeal refused leave to come to it on the ground that the matter in issue was foreclosed by its prior decisions by which it was bound. A majority of this Court held that there was no jurisdiction to give leave from the Ontario Court of Appeal’s refusal to bring up the case, nor was there jurisdiction to give leave from the decision of the County Court.
The relevant statutory provisions considered in the Paul case were s. 41(1) and (3), reading as follows:
41. (1) Subject to subsection (3), an appeal lies to the Supreme Court with leave of that Court from any final or other judgment of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court.
…
(3) No appeal to the Supreme Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
Fauteux J., as he then was, speaking also for Abbott and Judson JJ. (Taschereau J., as he then was, wrote separate concurring reasons) said this at pp. 466-467:
Agreeing as I do that the highest Court of final resort in the province, in this particular case, is the Court of Appeal, the next point to consider is whether the judgment of that Court, which is here sought to be appealed, is appealable under s. 41. As pointed out by our brother Taschereau, the judgment of the Court of Appeal is not a judgment determining an appeal but a judgment refusing leave to appeal and as such not within the terms of s. 41(3). The question is then whether it comes within s. 41(1). The proposition that judgments which are not within the scope of s. 41(3) are necessarily embraced in s. 41(1) has been ruled out in the Goldhar case, [1960] S.C.R. 60, where a strict adherence to the rule of literal construction of s. 41 was, in the matter, shown to lead to repugnancy. Such a result would equally obtain if the judgment refusing leave to appeal, in this case, was held to come within s. 41(1). For on the same reasoning, one would have to hold that, for indictable offences, s. 41(1) authorizes an appeal to this Court from a judgment of the Court of Appeal refusing leave to appeal to its Court from the verdict or judgment of first instance on grounds of mixed law and facts or pure facts. Such a jurisdiction would be inconsistent with the limitation of our jurisdiction to pure questions of law in criminal appeals from convictions or acquittals of offences.
Although the judgment of this Court in the Paul case was by a bare majority, it is instructive to note the basis of dissent as expressed in the reasons of Ritchie J., speaking for himself and Martland J., with Cartwright J., who also wrote separate dissenting reasons, agreeing with Ritchie J. in the following reasons of the latter, at p. 473:
As has been indicated, I would grant leave to appeal to this Court in the present case, but it should be clearly understood that this decision is strictly confined to the circumstances here disclosed and is based on the assumption that the Court of Appeal dealt with and disposed of the merits of the questions of law raised before it on the application for leave to appeal to that court as fully and effectually and for the same reasons and with the same result as they would have done if leave to appeal had been granted. The granting of this application is not to be construed as a review of the discretion vested in the Court of Appeal by s. 743 of the Criminal Code and can have no bearing on the right of the Court of Appeal to refuse leave to appeal in indictable offence cases under s. 583(a)(ii) because what is at issue here is a question of law and cases sought to be appealed under that section are concerned with fact or mixed fact and law. Nor can it be said that the considerations governing this case could apply to an application for leave to appeal to this Court from an order granting leave to appeal to the Court of Appeal because the effect of such an order can only be to pave the way for the questions of law to be decided on the hearing, and such an order cannot, therefore, have the effect of determining the merits of the appeal.
Lane v. Esdaile, supra, was distinguished by Ritchie J. as turning on a discretionary refusal to grant leave after the time for applying had expired and as not involving a determination on the merits. The present case is also not one in which it can be said that the Federal Court of Appeal’s refusal of leave was a determination of the merits in the same way as if it had granted leave to appeal and had thereafter reviewed the merits at a subsequent hearing. I do not wish this to be taken as necessarily opening the door to a review by this Court of a refusal by intermediate courts of appeal to give leave to appeal to them; the majority judgment in the Paul case is against such a position. It is enough, however, to underline that even on the view of the dissenting Judges in the Paul case, this Court had no jurisdiction to grant a review of the discretionary refusal of the court below to bring an appeal up for its consideration.
I would add to my reasons in this case a reference to a recent Procedure Direction of the House of Lords, dated March 6, 1979, and noted in [1979] 2 All E.R. 224. It concerns petitions for leave to appeal to that Court. They are to be referred to an appeal committee of three Lords of Appeal who are to consider whether a petition appears to be competent to be received and, if so, whether it should be referred for an oral hearing. There follows a listing of classes of petitions declared to be incompetent, of which the first is “petitions for leave to appeal to the House of Lords against a refusal of the Court of Appeal to grant leave to appeal to that Court from a judgment of a lower Court”. This is exactly the situation in the present case.
For the foregoing reasons, I would hold that no appeal lies to this Court from a refusal of the Federal Court of Appeal to grant leave to come before it and leave to appeal to question that refusal should not be given by this Court. The situation, in my opinion, is the same under s. 41(1) of the Supreme Court Act. This is not a case, moreover, where the Federal Court of Appeal mistakenly declined jurisdiction.
This Court reserved its opinion on this point at the hearing and advised the parties that any further argument would abide the result of its decision on the point. In the circumstances, the appeal must be quashed. This is not a case for costs.
The reasons of Pigeon, Beetz and Pratte JJ. were delivered by
PIGEON J. (dissenting)—At the hearing of this case a question was raised from the Bench as to the jurisdiction of the Court to hear it. Argument was thereupon heard on that question only.
The appellant was born in Warsaw, Poland, on November 1, 1932, and is a citizen of Poland. She was married, had two daughters born in 1953 and 1955, and separated from her husband in 1957. She says she came to Canada when she considered her daughters old enough to look after themselves. The exact date of her entry is December 24, 1973. She remained in this country after the expiry of the time allowed her as a visitor and an inquiry was commenced on June 13, 1976, under the Immigration Act (R.S.C. 1970, c. I-2). The inquiry resumed on August 18, 1977. The appellant claimed refugee status, but a deportation order was issued based on s. 5(t) of the said Immigration Act, that is, not being in possession of a valid and subsisting immigrant visa. The same day a notice of appeal was given in which the appellant stated that she wished to be present at the hearing of the appeal, to make oral submissions to the Board and also to be represented at the hearing. In support of this appeal she filed within five days an affidavit stating the reasons for which she was claiming refugee status and in this, among other allegations, she stated specifically:
12. I am subject to criminal and administrative sanctions for having remained out of Poland without permission. The penalties provided include deprivation of freedom and denial of such human rights as the right to work and to live in the locality of my choice. 13. This application for refugee status has heightened my fears to the point that I know I will suffer severe penalties, including interrogations and deprivation of liberty. Such an application as this will be treated as akin to treason and other offences against the state, which will not be tolerated and which are ruthlessly suppressed.
On August 30, 1977, without hearing appellant or her counsel, without any notice to them and in their absence, the Immigration Appeal Board delivered the following judgment:
File: 77-9346
IMMIGRATION APPEAL BOARD
LA COMMISSION D’APPEL DE
L’IMMIGRATION
A.B. Weselak The 30th day of August, 1977
G. Tisshaw
H.B. Jaskula
Zofia Janina Ernewein
APPELLANT
The Minister of Employment and Immigration
RESPONDENT
The declaration by the appellant dated the 23rd day of August, 1977, filed pursuant to paragraph (2) of section 11 of the Immigration Appeal Board Act has been considered on the 30th day of August, 1977, and upon reading the submissions filed;
THIS BOARD DOTH ORDER that the appeal from an order of deportation made against the appellant on the 18th day of August, 1977, be and the same is hereby refused.
AND DOTH FURTHER DIRECT that the order of deportation be executed as soon as practicable.
Judgement pronounced this 30th day of August, 1977
(signed) W.J. Hartley
Registrar
The appe