Hogan v. R., [1977] 1 SCR 413

Supreme Court of Canada

Hogan v. R., [1977] 1 S.C.R. 413

Date: 1976-01-30

Edwin Brockton Hogan Appellant;

and

Her Majesty The Queen Respondent.

1975: December 16; 1976: January 30.

Present: Laskin C.J. and Judson, Ritchie, Spence and Dickson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Appeal—Leave to appeal—Supreme Court of Canada—Motion for leave nunc pro tunc when question raised by the Court suo motu—Claim for general and punitive damages against the Crown for unlawful imprisonment—Deportation proceedings—Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 15.

Without seeking previous leave appellant appealed to the Supreme Court from a judgment of the Federal Court of Appeal affirming a judgment striking out appellant’s declaration and dismissing his action against the Crown in right of Canada for general and punitive damages for unlawful imprisonment and for conspiracy to violate his legal or civil rights. Appellant alleged that Canadian immigration authorities had been notified of the decision of the Immigration Appeal Board, to dismiss his appeal from a deportation order on the day it was made but that his counsel, who had instructions to appeal an adverse decision, was not told of it until some four days later, after the order had been executed.

Held: Leave to appeal was required but should be refused.

The mere assertion of a claim in excess of $10,000 did not found jurisdiction as of right. Further, as the question was not the amount in issue but whether the action could proceed on the basis of the declaration or statement of claim filed, leave was required and should have been sought before the notice of appeal was filed.

That the ordinary crown practice, to give counsel for a deportee time to consider whether to take the issue further, was not followed was not enough to persuade the Court to reconsider arguments on the merits of an appeal which had been rejected by the Federal Courts and which concerned essentially a matter of the practice and procedure in the Federal Court.

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Joyce v. Hart (1877), 1 S.C.R. 321; McNea and McNea v. Township of Saltfleet, [1955] S.C.R. 827; Composers, Authors and Publishers Association of Canada Ltd. v. Siegel Distributing Co. Ltd., [1958] S.C.R. 61, referred to.

MOTION FOR LEAVE TO APPEAL nunc pro tunc to the Supreme Court of Canada from a judgment of the Federal Court of Appeal, affirming a judgment of Gibson J., dismissing an action for damages for wrongful imprisonment and conspiracy. Appeal dismissed.

Charles Roach, for the appellant.

L.R. Olsson, Q.C., and G.R. Garton, for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The appellant, without seeking previous leave, invoked the jurisdiction of this Court to challenge a decision of the Federal Court of Appeal which affirmed a judgment of Gibson J. striking out the appellant’s declaration and dismissing his action against the Crown in right of Canada for damages for unlawful imprisonment and for conspiracy to violate his legal or civil rights. The appellant in his declaration claimed general damages of $500,000 and punitive damages in the same amount.

The only relevant documents before this Court are the appellant’s declaration by which he instituted his action, the formal order of Gibson J. (who delivered no reasons), the formal order of the Federal Court of Appeal, and short reasons of that Court dismissing the appellant’s appeal from Gibson J.’s order. The action arose out of deportation proceedings taken against the appellant, who described himself in the declaration as a freedom fighter and political prisoner. The Court was told that he had been convicted of very serious offences in the United States, that he was given leave for a limited purpose from his confinement in prison, that he failed to return to the Ohio prison where he had been confined, that he entered Canada and was apprehended, and deportation proceedings were taken against him. The appellant was kept in custody during the deportation proceedings. A deportation order was made and an appeal was

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taken to the Immigration Appeal Board. That tribunal heard his appeal over a period of three days and reserved its decision at noon on the third day, October 19, 1972. The complaints that form the basis of the action for damages brought by the appellant arise with respect to the events which followed upon the Board’s decision.

It appears from the declaration that the decision was made later in the day on October 19, 1972 and it confirmed the deportation order. Although neither the reasons nor the order of the Board are before the Court, I note that s. 15 of the Immigration Appeal Board Act, R.S.C. 1970, c. I-3 provides that on dismissing an appeal from a deportation order the Board “shall direct that the order be executed as soon as practicable”. The appellant alleges that the immigration authorities were notified of the decision on the day it was made but that his counsel, who had instructions from him to appeal an adverse decision, was not told of it until October 23, 1972 and at a time that day when the appellant had already been handed over to American authorities on their side of the border.

The appellant had been kept in custody from October 19 to October 23 and then had been removed from gaol and taken by Canadian police and immigration agents into the United States and there handed over to American police authorities.

The appellant referred to himself in his declaration as a fugitive and claimed the benefit of an extradition hearing. There is nothing in the record to indicate that any claim for extradition was made by the United States, and it was open to the Canadian authorities to refuse entry of the appellant to Canada and to seek to deport him on his unlawful entry.

There is no merit in the contention of unlawful imprisonment either in Canada or in the United States, and the Canadian authorities were fully entitled, if so permitted at the border, to escort the appellant into the United States where he was a “wanted” man.

At the opening of the appeal the Court, suo motu, raised the question of its jurisdiction when

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leave to appeal had not been obtained. Counsel for the appellant sought to establish a right of appeal de plano (under the law as it existed when appeal proceedings were taken on May 10, 1974) by referring to the quantum of damages set out in the declaration. That amount is simply outrageous and, indeed, appears to me to have been considerably muted by counsel’s contention that damages are at large in an action of civil conspiracy and need not be proved as an element of that cause of action. In Joyce v. Hart[1], it was held, over a dissent, that monetary jurisdiction may be established by reference to the amount claimed by the plaintiff, but that was a case which went to trial and one in which an order was made for an assessment of damages, and on appeal damages for the trespass that was alleged were fixed by the Appellate Court at an amount well below the monetary sum needed to support an appeal as of right. In cases like the present one, where there is nothing but a statement of claim to go on, this Court has not regarded the mere assertion of a claim for damages as sufficient to found jurisdiction and, indeed, it is not invariably sufficient after a trial where the action has been dismissed or where the trial judge has indicated that his award would in any event have been below the jurisdictional amount: see McNea and McNea v. Township of Saltfleet[2]; Composers, Authors and Publishers Association of Canada Ltd. v. Siegel Distribution Co. Ltd.[3] The present case is not one in which, from the facts and circumstances alleged, this Court could say that more than $10,000 is involved in the proposed appeal.

Moreover, what is involved here is not a question of the amount in issue but whether the action should be allowed to proceed on the basis of the declaration or statement of claim filed by the

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appellant. Leave to appeal to this Court is certainly required in such a case and should have been sought before the notice of appeal was filed. The appellant moved for such leave nunc pro tunc when the issue of this Court’s jurisdiction was raised from the Bench. I do not think that this is a case in which this Court should either extend the time for seeking leave or should grant leave to appeal. There is only one point upon which the appellant may have cause to complain and that is that his counsel was not informed promptly of the decision of the Immigration Appeal Board so as to give him an opportunity to seek leave to appeal the Board’s decision to the Federal Court of Appeal. The right to seek leave does not depend on the appellant’s presence in Canada, but in his particular circumstances as a fugitive his seeking of leave to appeal when confined in a United States prison could hardly have much meaning. Counsel for the Crown indicated that the immigration authorities ordinarily gave counsel for a deportee time to consider whether to take the deportation issue further before they escorted a deportee out of the country. That was not done here. Apart from this one feature, I can see no merit in the appellant’s position so far as concerns his challenge of the deportation order. It is not enough in itself to persuade this Court to consider arguments on the merits of an appeal which have been so clearly rejected by the Federal Courts, and, moreover, an appeal which concerns essentially a matter of the practice and procedure in the Federal Court.

Leave to appeal is accordingly refused. There will be no order as to costs in this Court.

Leave to appeal refused, no order as to costs.

Solicitor for the appellant: Charles Roach, Toronto.

Solicitor for the respondent: D.S. Thorson, Ottawa.