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Whence They Came

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Barbara Roberts

9. “Purely Administrative Proceedings”

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  • 1 J. F. Hodgetts, The Canadian Public Service. A Physiology of Government, 1867-1970, Toronto, Unive (...)

1The Department of Immigration was arbitrary in the management of deportation. Curbs on this arbitrariness were few and ineffective. As J. F. Hodgetts points out, “There is a paradox in the fact that the administrative branch of the government is by far the largest of our public and private institutions and yet, even to the informed members of the general public, it is the least visible.”1

  • 2 C. F. Fraser, Control of Aliens in the British Commonwealth of Nations, London, Hogarth, 1940. See (...)

2The Department’s immigration and deportation practices were not visible to, and therefore not controllable by, outsiders. A 1940 study by legal scholar C. F. Fraser comparing deportation in the U.K., Ireland, Northern Ireland, Canada, Australia, New Zealand, and South Africa, concluded that Canadian practices were the most arbitrary. Unchecked by an apathetic judiciary, the power of Canadian officials had grown dangerously, gone beyond its legislative authority, and continued to increase.2

  • 3 The third, and least likely, was public opinion. The invisibility of what the Department did was a (...)

3The two likeliest sources of outside control over the deportation practices of the Department were Parliament and the courts.3 Parliament was consistently uninformed or misinformed, and judicial review was severely limited by the Immigration Act. Neither chose to test the limits set upon their sphere of inquiry. Even the recurring and sometimes protracted debates in the 1920s about the repeal of the extraordinary powers added to Section 41 in 1919, revealed massive ignorance, and almost equally massive indifference in both Houses about deportation. The mere expediency (rather than the principle) of the law was at issue, and Ministerial responsibility was easily shrugged off. The Senate especially made it clear that it did not disapprove of arbitrary proceedings against “agitators”.

  • 4 C. F. Fraser, ibid., p. 114.

4As Eraser’s study commented, “The most notable feature of deportation cases in Canada is the apparent desire to get agitators of any sort out of the country at all costs....[T]he executive branch of the government, in its haste to carry out this policy... displayed a marked disregard for the niceties of procedure.”4 The Department of Immigration for many years operated a clandestine and illegal immigration policy, established by executive fiat of the Minister, without benefit of Parliamentary debate. These decisions were carried out clandestinely by Ministerial action “on account of the desire not to mention in any Order-in-Council that one country was preferred to another.” This course of action had been decided at a conference with the transportation companies. In 1910, the Minister had ordered the admission of immigrants from “preferred” countries, in violation of the Immigration Act. Discrimination against the immigrants from Southern and Eastern European countries had been in practice “all the time,” Deputy Minister Egan testified in 1928 to the House Committee on Agriculture and Colonization. Asked by a surprised Committee member, “How could the Minister go behind the Order-in-Council?”, Egan replied, “It was a practice in vogue, and he did it, and not in any isolated cases at all, but in hundreds of cases it was done all the time.”

5In 1922, an amendment to the legislation established a system of admission based on occupations. The Department continued its parallel illegal policy and practices. Egan described how the Department had evaded specific provisions such as landing-money, continuous voyage, and passport technicalities established by Orders-in-Council to exclude the unwanted and ill-equipped. When attractive immigrants from “preferred” countries did not meet these requirements, the Department illegally “disregard[ed] the money test sometimes, or the passport regulations, particularly in connection with the countries of Northern Europe.”

  • 5 Report of the Select Standing Committee on Agriculture and Colonization, Minutes of Proceedings an (...)

6Decisions like these determined who was admitted and who was deported. As Egan testified, these particular practices had been in effect for at least eighteen years. Parliament had known nothing about this powerful extralegal system that went beyond the legislated limits and procedures of Departmental actions. In reality, these decisions had neither been made, controlled, nor implemented by Parliament.5 Subsequent years would bring no significant increase in Parliamentary knowledge of or control over the Department’s practices.

  • 6 Public Archives of Canada (PAC) Record Group (RG) 76, File 653, 17 June 1926. RG 76 files hereafte (...)

7The Senate displayed a marked tolerance for contradictory and unsupported claims from those responsible for the management of deportation. Tory Senator Gideon Robertson, who as Minister of Labour had been instrumental in breaking the Winnipeg General Strike, had insisted in 1920 that the added (Section 41) powers of 1919 had been used to clean out so many dissidents that they were now superfluous. In subsequent years, others were to claim that these powers, or even the original Section had never been misused. Senator Calder, who had been Minister of Immigration in 1919, and should have known what went on in his own Department, claimed in a 1926 debate on the 1919 Winnipeg General Strike that the deportation powers of the Department were neither arbitrarily nor summarily exercised. Immigration Secretary Blair promptly assured Bruce Walker, Director of European Emigration in London, that Calder’s statement was “absolutely incorrect as a matter of law and the [Immigration Act] section as it stands does exactly what Mr. Calder said no Government would do, viz. put into the hands of any Board of Inquiry, even of one person, the power to order deportation.” Like their counterparts in Cabinet, Senators were often little more than mouthpieces for the Department.6 Debates were focused on policy rather than practice, on legalisms rather than reality.

  • 7 Ibid., Percy Reid to Cory, 19 December 1918.

8Debates in the House were only slightly more critical, and not much better informed. Even those who pressed for deportation reform were uninformed and naive about the Department’s practices. For instance, Woodsworth’s 1920s campaign to repeal the extended 1919 powers of Section 41 was based on the complaint that these extended powers allowed deportation for political offences without trial by jury. In fact, jury trials had never been a part of deportation proceedings. Immigrants charged with crimes might be tried by juries in the courts, but deportation proceedings were separate and apart. Criminal proceedings took place in a court of law, and the accused had recourse to certain rights and a certain protection under that law, at least in theory. Deportation proceedings were conducted by a closed administrative tribunal. The Department wanted to avoid “purely technical and unwarrantable interference by pettifogging lawyers.”7 Woodsworth and his colleagues in both Houses remained apparently unaware of such practices and perhaps of such attitudes. It was Parliament which passed the laws relating to deportation, but the records of the Department make it clear that Parliament neither made those laws, nor knew, nor controlled how those laws were carried out.

  • 8 In re: Munshi Singh, 1914, cited by C. F. Fraser, p. 100; File 653, Reid to Cory, 19 December 1918 (...)

9As for the courts, their power to intervene in deportation matters was virtually nonexistent under the Immigration Act. The Act provided that “all matters pertaining to the detention and deportation of any rejected immigrant should be dealt with by the executive and not the judicial branch of the Government,” as Mr. Justice Irwing explained. The Department had been careful to preserve its immunity from interference by the courts, arguing that the rights of deports were not jeopardized by such an exclusion. If the Department exceeded the law, then the courts could intervene; that was sufficient. The Department did not deny that its powers were increasingly broad; it argued that it should be trusted with these powers. Minister Calder on 14 May 1919 wrote in this vein to the Canadian Jewish Congress: “The Act... undoubtedly places large discretionary powers in the hands of the executive and its administrative officers.... I need scarcely assure you that every effort will be made to see that these powers are exercised sanely and reasonably.”8

  • 9 C. F. Fraser, ibid., p. 114.

10Given the exclusion of the judiciary from deportation matters, there was little the deport could do when the Department not infrequently failed to follow the path of sanity and reason. C. F. Fraser’s study of 121 selected cases concluded that in Canada, “The earlier cases show a casual and unintentional rather than intentional disregard for the judiciary. The later cases indicated a premeditated intent to deprive the alien... of his right to judicial protection.”9

  • 10 File 563236, Law Reports of Quebec, Mr. Justice Gibson, Quebec, Mr. Justice Gibson, Quebec Superio (...)

11There was almost no dissent from the courts. Typical was Mr. Judge Gibson’s comment that Parliament intended and provided that all such questions should be dealt with “exclusively by the machinery of the Department of Immigration... subject only to an appeal to the Minister, and without any powers of review or control by the courts.” Section 23 of the Immigration Act said that no court has jurisdiction to review, quash, reverse, restrain, or interfere with any proceeding, decision, or order of the Minister, Board of Inquiry, or Officer-in-Charge, concerning detention or deportation, “upon any ground whatsoever,” except in the case of Canadian citizens or domiciled immigrants. He argued against the use of certiorari: the courts could not interfere with Boards of Inquiry even in cases of misunderstanding or misinterpretation of the law or regulations, or of illegal evidence, error, informality, or omission, “which may fairly be classed as a matter of procedure, or of departmental regulation.”10

12Such a position was not unusual; Canadian courts on the whole acquiesced to the informal and extralegal system of justice operated by the Department. As long as the Department was not caught exceeding the law or violating procedures laid down in the Act and regulations governing deportation, it had a virtual free hand insofar as the courts were concerned.

  • 11 Cited by C. F. Fraser, Rex vs. Almazoff, p. 102; Arvo Vaaro case, p. 109. See also File 513116, on (...)

13Judicial apathy or unwillingness to challenge this star chamber system, was clear in some cases: because deportation was not a criminal proceeding, the deport did not have the right to bail, to a speedy and fair trial by a jury of his or her peers, to know the evidence against him or her, or to confront his or her accuser, according to a series of Canadian court decisions. As Mr. Justice Mothers of Manitoba held, “Proceedings under the Immigration Act for the deportation of an undesirable alien are in no sense criminal and a person arrested and detained for such purpose is not committed for any crime....” The Supreme Court of Canada confirmed this point of view on appeals by a group of radicals detained in Halifax awaiting deportation. Deportation was not a subject for the courts; it was “a purely administrative proceeding.” In Fraser’s view, “the most remarkable feature of the cases is that nowhere does there appear to be any appreciation on the part of judges of just how far their jurisdiction has been infringed by the executive without any apparent legislative authority for such infringement.”11

  • 12 M. R. Konvitz, Civil Rights in Immigration, Ithaca, Cornell University Press, 1953, pp. 97-98; Wil (...)

14The acquiescence of Canadian courts to the withholding of due process from deports may have been extreme compared to other Commonwealth countries, but it was similar to the actions of American courts. The U.S. Supreme Court ruled in 1893 that Congress could hand over the power to deport to administrative agencies, and that the courts were forbidden to interfere. Deportation was held not to be punishment for crime, so a deport was not entitled to the same protection as a criminal. A criminal under both American and Canadian law was presumed innocent; it was up to the prosecution to establish the guilt of the accused. But a deport was presumed guilty, and it was up to the accused to show why deportation should not take place. In 1932 William Van Vleck, Dean of the George Washington University Law School, pointed out, “There is a striking similarity in fact between the purposes and results of the expulsion process and those of a criminal trial. The courts have said, however, again and again that they are in legal theory entirely dissimilar.”12

  • 13 On the U.S. side, see Jane Perry Clark’s description of U.S. law and practice, in Deportation of A (...)

15Some American judges argued against this interpretation. A dissenting opinion in the 1893 U.S. Supreme Court case had argued that deportation was punishment involving arrest, removal, and forcible expulsion from the country. Punishment implied a trial; according to common law, due process required a hearing before condemnation. The U.S. Immigration Act, in this opinion, “inflicts punishment without a judicial trial. It is, in effect, a legislative sentence of banishment.”13

  • 14 U.S. deportations cited by Perry Clark, p. 30. Roscoe Pound, “Social and Economic Problems of the (...)

16Such questions had become of even greater importance by the 1920s when, according to the U.S. Commissioner General of Immigration, deportation was “rapidly becoming one of the most important functions of the Immigration Service.” American scholar Roscoe Pound, in his analysis of the development of administrative law from “delegated legislation”, argued that the U.S. Immigration Bureau epitomized the practice of making law by administrative fiat. Protests about the actions of these officials came not from Congress or the courts but from “lawyers and humanitarians.” U.S. courts “have confined within narrow limits the scope of their review of the administrative decisions of immigration officials.”14

17The similarities between the American and Canadian departments are striking. Lest it be thought that the United States was more arbitrary and more extreme, the somewhat wistful comment of the Dillingham Commission on the Canadian Immigration Act of 1910 is worth considering:

  • 15 See the Report of the Immigration Commission, The Immigration Situation in Canada, Washington, Gov (...)

The most striking feature of the Canadian immigration law, and the one in which it differs most widely from the United States law, is its flexibility, or adaptability to emergencies or changed conditions. The Canadian law confers almost unlimited power on the governor general in council in matters respecting immigration. In fact, it would seem under the terms of the law that the administration could, if deemed desirable, not only prohibit any particular class of immigration, but practically prohibit all immigration to Canada.15

18The 1910 Act remained the legal basis of Canadian immigration practice until well after the Second World War. The 1919 Act merely increased ministerial discretion and thus increased flexibility.

19After 1919, the Department’s legal power to act arbitrarily was increased in degree, rather than modified in kind. The question was not of legality, but of practice. As long as deportation management remained an administrative matter and Department practice remained concealed from the public or Parliamentary eye, there was very little check on the power of the Department to do what it deemed appropriate. Efficiency,

Notes

1 J. F. Hodgetts, The Canadian Public Service. A Physiology of Government, 1867-1970, Toronto, University of Toronto Press, 1973, p. 341.

2 C. F. Fraser, Control of Aliens in the British Commonwealth of Nations, London, Hogarth, 1940. See pp. 104, 106, 111, 114.

3 The third, and least likely, was public opinion. The invisibility of what the Department did was an important barrier against public opinion. Only in isolated instances did public opinion prove influential – partly because the Department masked its practices so well, and partly, as Hodgetts points out (in the context of staff management and other internal concerns) because ministers and cabinets have protected their flanks, and partly due to complexity.

4 C. F. Fraser, ibid., p. 114.

5 Report of the Select Standing Committee on Agriculture and Colonization, Minutes of Proceedings and Evidence and Report, Appendix Number Eight of Select Committee, Sessional Papers, House of Commons, 1928. Testimony of Deputy Minister Egan. There is no indication that Parliament was disturbed by Egan’s revelations. On this, see Blair Fraser, “The Built-in Lie Behind Our Search for Immigrants,” Maclean’s Vol. 78, 19 June 1965. Blair Fraser says, “Canadian immigration policies and practice are a monument to Canadian hypocrisy.”

6 Public Archives of Canada (PAC) Record Group (RG) 76, File 653, 17 June 1926. RG 76 files hereafter cited by “File” and number only. The power to deport had been given to Boards of Inquiry, or to one officer acting as a Board, by the 1906 Act. Subsequent changes had merely increased the paperwork, rather than decreased the power, of such Boards or officers. Blair to Dandurand, 14 June 1926. (Compare this with the Senate Debates). See also, “Memo prepared for the Minister to use in the House,” File 653, 29 April 1926.

7 Ibid., Percy Reid to Cory, 19 December 1918.

8 In re: Munshi Singh, 1914, cited by C. F. Fraser, p. 100; File 653, Reid to Cory, 19 December 1918, 14 May 1919.

9 C. F. Fraser, ibid., p. 114.

10 File 563236, Law Reports of Quebec, Mr. Justice Gibson, Quebec, Mr. Justice Gibson, Quebec Superior Court, commenting on re: Tershinsky vs. Moquin, 1928.

11 Cited by C. F. Fraser, Rex vs. Almazoff, p. 102; Arvo Vaaro case, p. 109. See also File 513116, on Vaaro, and File 513111, on Dan Chomicki, for information on their case in the Nova Scotia courts and their ultimate deportations. Case of Rex vs. Almazoff, 1919, in Manitoba Superior Court, cited by Fraser, p. 102; Nova Scotia Supreme Court decision cited by Fraser, p. 109. For the case, see 1933 Dominion Law Reports, Second Volume, p. 348.

12 M. R. Konvitz, Civil Rights in Immigration, Ithaca, Cornell University Press, 1953, pp. 97-98; William Van Vleck, The Administrative Control of Aliens. A Study in Administrative Law and Procedure, New York, The Commonwealth Fund, 1932, pp. 48-49, 206.

13 On the U.S. side, see Jane Perry Clark’s description of U.S. law and practice, in Deportation of Aliens From the United States to Europe, New York, AMS Press, [1931] 1968, p. 116. This was done as part of their Columbia University Studies in the Social Sciences Series (number 351). For Canada, see File 653, passim.

14 U.S. deportations cited by Perry Clark, p. 30. Roscoe Pound, “Social and Economic Problems of the Law,” Annals of the American Society of Political and Social Science, Volume 137, Number 225, March 1928, pp. 6-9.

15 See the Report of the Immigration Commission, The Immigration Situation in Canada, Washington, Government Printing Office, 1910, p. 45. See also William Preston, Aliens and Dissenters; John Higham, Strangers in the Land. Patterns of American Nativism, 1860-1925, New York, Atheneum, 1971; and especially Van Vleck on judicial review, pp. 149-207.

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