Bossin, Michael

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York University, Osgoode Hall Law School

Journal of Law and Social PolicyVolume 5 Article 101989Case Comment: Ictensev v. The Minister ofEmployement and ImmigrationMichael BossinFollow this and additional works at: https://digitalcommons.osgoode.yorku.ca/jlspThis Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Journalof Law and Social Policy by an authorized editor of Osgoode Digital Commons.Citation InformationBossin, Michael. "Case Comment: Ictensev v. The Minister of Employement and Immigration." Journal of Law and Social Policy 5.(1989): 255-263.https://digitalcommons.osgoode.yorku.ca/jlsp/vol5/iss1/10CASE COMMENT:ICTENSEV v. THE MINISTER OF EMPLOYMENT ANDIMMIGRATIONMichael Bossin*An unfortunate series of events lead to the illegal detention of EthemIctensev. He was detained in jail for a period of more than two yearsuntil his release was ordered by a judge of the Supreme Court of On-tario.1Ethem Ictensev is a citizen of Turkey, who arrived in Canada onAugust 1st, 1986. He claimed refugee status. A report was then written,pursuant to Section 20 of the Immigration Act2, as Mr. Ictensev had ar-rived in Canada without the proper visa. He was told to report for hisinquiry on September 9th, 1986. Until then, he was free to remain atlarge in the community, out of custody.On September 9th, Ethem Ictensev came to his inquiry without coun-sel. A Turkish interpreter was present, as Mr. Ictensev spoke onlylimited English. The inquiry commenced but did not proceed. The ad-judicator was not satisfied that Mr. Ictensev had been advised of hisright to counsel prior to the hearing. In such circumstances, Section27(3) of the Immigration Regulations, 1978 requires the adjudicator toadjourn.3After announcing her decision to adjourn, the adjudicator asked thecase presenting officer, who represents the Minister of Employmentand Immigration at such hearings, if she was content with Mr.Ictensev's continued release. The officer requested a recess beforeresponding, and this request was granted.During the recess, the case presenting officer questioned Mr. Ictensevabout a number of things, including his experiences in Turkey. Thisoccurred in spite of the fact that it had just been determined that Mr.Ictensev had not been advised of his right to counsel. The questioning*Copyright 0 Michael Bossin. Michael Bossin is a lawyer and Executive Directorof Willowdale Community Legal Services, Toronto.1. Ictensev v. The Minister of Employment and Immigation (1988) 7 Imm.L.R. (2nd)306 (S.C.O.) [hereinafter Ictensev].2. R.S.C. 1985, c. 1-2.3. SOR/78-172.(1989) 5 Journal of Law and Social Policytook place in the absence of counsel.After the recess, the case presenting officer stated that she was not contentwith Mr. Ictensev's continued release. She then proceeded to make alengthy submission, which included information obtained from Mr. Ic-tensev, during the recess, to the effect that he should be detained.After hearing the officer's submissions, the adjudicator advised Mr. Ic-tensev that she had to decide whether she ought to continue hisrelease or order his detention. She then stated:"Now you still have not been advised of your right to be repre-sented by counsel at this inquiry. You have the right to be repre-sented by a counsel. Such a counsel can be a lawyer or any otherperson, and you don't have to say anything at this inquiry until youhave an opportunity to consult a counsel However, if you wish toaddress the issue of your detention or your release you may do soat this time. Is there anything you would like to say?" 3aMr. Ictensev responded that he did not want to get a lawyer or counselat the moment, but would like to answer right then. The adjudicatorthen advised Mr. Ictensev that she had some questions for him. Sheindicated that if he did not wish to respond to the questions withoutcounsel, that was his right, but that she was very concerned about hisbeing a danger to the public. She then proceeded to question Mr. Ic-tensev, which questioning covered seven pages of the transcript of thehearing.At the conclusion of the adjudicator's questions, Mr. Ictensev stated,"after answering all these questions by myself now, do I have a rightto get a counsellor?" The adjudicator replied, "you have a right to get acounsel at any stage of the proceedings, Mr. Ictensev. Please proceed,Mrs. N. (the case presenting officer)." The case presenting officer thenproceeded to question Mr. Ictensev for five pages of the transcript.In the end, Mr. Ictensev was ordered detained pursuant to s.103(3) ofthe Immigration Act.4 Under this section, where an inquiry is to be heldor continued with respect to a person, an adjudicator may make anorder for the detention of the person where, in his opinion, the personposes a danger to the public or would not otherwise appear for the in-quiry or continuation thereof. Mr. Ictensev was ordered detained forboth reasons.3a. Transcript of the Inquiry for Mr. Ictensev.4. Supra, note 2.Case CommentIt is clear from a reading of the transcript of the inquiry, on Septem-ber 9, 1986, that the adjudicator was not satisfied with the interpreter'sperformance. For example, she expressed doubt as to whether he wastranslating accurately; had to request him to translate certain portionsof the proceedings; had to remind him to translate exactly what shesaid and not as he wished; suggested that discrepancies in theevidence might be attributed to the interpreter, had to stop the inquiryto ask whether the interpreter was correctly interpreting; and had toask the interpreter to use the exact language that Mr. Ictensev wasusing. Furthermore, the interpreter at times spoke in the third personwhen translating Mr. Ictensev's words, admitted that he had not trans-lated one of the adjudicator's questions to Mr. Ictensev as asked, andoccasionally could not hear what was said.Under the provisions of the Immigration Act, an adjudicator was re-quired to review Mr. Ictensev's detention every seven days. This wasdone, but on each occasion, the adjudicator referred to statementsmade by Mr. Ictensev on September 9th, 1986, and on such basis or-dered his continued detention. At a number of these detention reviews,Mr. Ictensev was represented by counsel.In the fall of 1988, an application for habeus corpus ad subjiciendumwith certiorari in aid was brought in the Supreme Court of Ontario. Itwas argued that at this inquiry on September 9th, 1986, Mr. Ictensev'srights had been violated, pursuant to the Charter of Rights5 and theImmigration Act, and that this initial proceeding had tainted all sub-sequent detention reviews. It was submitted that Mr. Ictensev's deten-tion was illegal and he should therefore be released immediately. Inhis decision Mr. Justice McKeown accepted all of these arguments,and the application was successful. After more than two years of il-legal detention, Mr. Ictensev was ordered released from jail.The Ictensev decision itself is not lengthy. However, from a legalperspective, the decision is interesting for two reasons: one's right toan interpreter, and one's right to counsel.Both the Charter and the Canadian Bill of Rights6 deal with the right tothe assistance of an interpreter. Section 14 of the Charter states that "aparty or witness in any proceedings who does not understand or speak5. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being schedule B of the Canada Act 1982 (U.K.), 1982, c.l1 (hereinafter theCharter).6. S.C. 1960, c. 44 (R.S.C. 1970, Appendix III).(1989) 5 Journal of Law and Social Policythe language in which the proceedings are conducted or who is deafhas the right to the assistance of an interpreter".7 Section 2(g) of theCanadian Bill of Rights is similarly worded.8 Furthermore, section27(2)(c) of the Immigration Regulations, 1978 requires adjudicators tosatisfy themselves that the person concerned is able to understand andcommunicate in the language in which the inquiry is being held.9Where the adjudicator is not satisfied, the inquiry should be ad-journed to enable the case presenting officer to obtain the services ofan interpreter.10 Where an interpreter is required, he or she mustswear an oath to translate accurately to the best of his or her ability allthe questions asked, answers given and statements made at the in-quiry.11The leading case concerning one's right to the assistance of an inter-preter is a 1974 Supreme Court of Canada decision, 1. v. Reale 12Throughout his trial for noncapital murder, Mr. Reale had the servicesof an interpreter. Interpretation was provided for the final jury addres-ses of both Crown and defence counsel. However, when it came to hischarge to the jury, the trial judge dispensed with the interpreter be-cause he felt that interpretation at this .stage might distract the jury.The majority of the Supreme Court found that this ruling resulted in aviolation of Section 2(g) of the Canadian Bill of Rights.13 Further, Sec-tion 577(1) (now Section 650) of the Criminal Code provides that "anaccused other than a corporation shall be present in court during thecourse of his trial".14 According to Reale, without an interpreter assist-ing him at "every" stage of the proceeding, the accused person in acriminal proceeding is effectively not present, which is his right. 15The Court of Appeal, in its reasoning in Reale, related one's right toan interpreter to the concept of equality. 167. Supra, note 5.8. Supra, note 6.9. Supra, note 3.10. Ahid. at s.27(3).11. Ibid. at s.28(b).12. (1975), 22 C.C.C.(2d) 571 (S.C.C.) [hereinafter Reatel.13. Supra, note 6.14. R.S.C.-1985 c. C-46.15. Supra, note 12.16. (1974), 13 C.C.C. (2d) 345 (Ont.C.A.).Case CommentThe Court of Appeal wrote:"An accused who is unable to understand what is being said duringan essential part of the trial by reason of his inability to understandthe language in which the trial is conducted can scarcely be said tostand on the same footing or in an equal position with respect tothe application of the criminal law as others who are subject to itsprocess." 17Similarly, reading Section 14 of the Charter in conjunction with Sec-tion 15, one can say that without the full assistance of an interpreter,persons requiring such assistance are not equal before the law withthose for whom such assistance is not required.18In Weber v. Minister of Manpower and Immigration, the Federal Court ofAppeal held that "since the rights of an individual are ... at issue, thereasoning in the Reale case (was) applicable in an (immigration) in-quiry."19 In Weber, the evidence of one of the witnesses called by theperson concerned had not been translated to such person. To rectifythis error, the special inquiry officer (adjudicator) provided a summaryof the evidence, which was duly translated. This evidence, clearly, wasirrelevant to the allegation being made against the person concernedand presumably would have had no effect whatsoever on the decisionmade at the inquiry. In a review of the decision, the Federal Court ofAppeal held that the "failure to interpret verbatim the testimony of awitness called on her behalf, deprived the Applicant of her fundamen-tal right to know what was being said in an essential part of theInquiry" (emphasis added).20 Moreover, the special inquiry officer's at-tempt to correct this failure by summarizing the evidence did not curetheherror. 'The Applicant," said the Court, "was entitled to know ex-actly what was said ... "21Weber goes far in establishing the extent of one's right to the assistanceof an interpreter. In Faiva v. The Minister of Employment and Immigra-tion, the Federal Court of Appeal goes even further in demonstratinghow almost absolute this right is, in the context of an immigration17. Supra, note 16 at 348-9.18. Supra, note 5.19. (1977), 13 N.R. 495 at 500 (Fed.CA.) [hereinafter Weber].20. Ibid. at 500.21. Ibid(1989) 5 Journal of Law and Social Policyhearing.22 In this case, the applicant was from Tonga, and spoke theTongan language. The inquiry was adjourned so that a Tongan inter-preter could be found. However, none could be found. After a numberof adjournments, the case presenting officer informed the adjudicatorthat every possible effort to find an interpreter who could speak Ton-gan had been made but they had been unsuccessful. The adjudicatorwas faced with a dilemma. He had a responsibility to conduct the in-quiry, but he also was required to provide the person concerned withan interpreter.In the end, the adjudicator decided to "relax somewhat the require-ments concerning a person concerned's ability to understand andcommunicate," and proceeded with the inquiry in English.23 He foundthat Mr. Faiva had remained in Canada after he had ceased to be avisitor, and ordered his removal. In his decision, the adjudicator statedthat "I am satisfied from your testimony that your command of theEnglish language is and has been sufficient for you to effectively com-municate at this inquiry and to understand the questions put to youand all other matters at this inquiry."24 In spite of this, the FederalCourt of Appeal overturned the decision. The Court held that theadjudicator's "duty to conduct an inquiry was subject to the require-ment that an interpreter be provided.... If an interpreter was required,which was clearly (the adjudicator's) opinion, and could not beprovided, he no longer had a duty to proceed with the inquiry. He didnot have the right to do so."25Mr. Justice McKeown cited Faiva in deciding Ictensev. However hewent one step further by stating "once the adjudicator decided that theinterpreter was unsatisfactory, she should have adjourned the in-quiry.' 26 Furthermore, 'the right to the assistance of an interpretermeans the right to the assistance of a competent interpreter. Mr. JusticeMeKeown states that s.14 of the Charter can only be interpreted asmeaning a qualified interpreter."27 This may seem trite, but such judi-22. (1983), 47 N.R. 225 (Fed.C.A.) [hereinafter Faival.23. Supra, note 22 at 228.24. Ibid.25. Ibid.26. Ictensev, supra, note 1 at 1.27. Ibid.Case Commentcial statements are clearly helpful in situations where one has theslightest doubt about the ability of an interpreter. One's right to haveevery word spoken at a hearing translated accurately and competentlyis well supported by Canadian case law.One final word with respect to interpretation: all of the rights as-sociated with interpretation into English or French apply equally tothose whose need for an interpreter is the result of a hearing impair-ment. In the recent case of Murphy v. Dodd,28 the Court of Appealoverturned an injunction against a deaf woman on the grounds thatthe notice of proceedings had not properly been interpreted to Ms.Dodd. Query whether a similar ruling would be made where therespondent/defendant requires an interpreter because of his or herlack of fluency in English or French?A number of issues arose in Ictensev concerning Mr. Ictensev's right tocounsel. Section 10(b) of the Charter provides that "everyone has theright on arrest or detention to retain and instruct counsel withoutdelay and to be informed of that right. ' 29 Was Mr. Ictensev detained?Clearly, he had not been arrested when the adjudicator announcedthat she had to "decide whether (she) ought to continue (his) release or... order (his) detention."29a Support for the notion that Mr. Ictensevwas "detained" at this point can be found in R v. Therens, a decisionof the Supreme Court of Canada.30 In that decision, Mr. Justice LeDain considered the meaning of detention. He writes:"[Section] 10 of the Charter is directed to a restraint of liberty otherthan arrest in which a person might reasonably require the assis-tance of counsel but might be prevented or impeded from retainingand instructing counsel without delay but for the constitutionalguarantee."31Mr. Justice Le Dain continues:"There can be no doubt that there must be some form of compul-sion or coercion to constitute an interference with liberty orfreedom of action that amounts to a detention within the meaning28. (11 July 1989), No. 1566/89 (S.C.O.).29. Supra. note 5.29a Supra, note 3a.30. (1985) 18 D.L.R. (4th) 655 (S.C.C.) [hereinafter Therensj.31. Ibid. at 678.(1989) 5 Journal of Law and Social Policyof s.10 of the Charter. The issue, as I see it, is whether that compul-sion need be of a physical character, or whether it may also be a com-pulsion of a psychological or mental nature which inhibits the will aseffectively as the application, or threat of application, of physical force.The issue is whether a person who is the subject of a demand or direc-tion by a police officer or other agent of the State may reasonablyregard himself or herself as free to refuse to comply."32In considering whether it would be reasonable for a person to regardhimself or herself as free to refuse to comply, the Mr. Justice Le Dainallowed that one's perception of such freedom would be of greaterrelevance than the precise legal limits of the State's authority to detain,of which most citizens would not be aware.'The element of psychological compulsion, in the form of areasonable perception of suspension of freedom of choice, isenough to make the restraint of liberty involuntary. Detention maybe effected without the application or threat of application of physi-cal restraint if the person concerned submits or acquiesces in thedeprivation of liberty and reasonably believes that the choice to dootherwise does not exist."33In the context of an immigration inquiry, where the person concernedis probably a newcomer to Canada, may speak little English and isgenerally in a state of some anxiety, such a definition of detention isextremely important. Like Mr. Ictensev, most persons in such a situa-tion will feel compelled to remain at the inquiry. It is unlikely thatmany will believe that they can simply leave the proceedings wheneverthey wish.As a rule, immigration officers deny recent arrivals to Canada accessto counsel when such persons are being questioned at the point ofentry. Again, one's ability in English or French as well as one's levelof anxiety would contribute to one's mental state at this time. State-ments made to immigration officers in such circumstances are in-variably recorded, and may be used against the person concerned at alater date. Therens and Ictensev certainly support the view that at thisstage, those persons held by immigration authorities should be madeaware of their right to counsel. Furthermore, according to the Supreme32. Supra, note 30 at 678.33. 1bid. at 680.Case CommentCourt of Canada in K v. Manninen, detainees must be provided with areasonable opportunity to retain and instruct counsel without delay.34Simply advising one of his or her rights at this point is not enough tosatisfy the provisions of Section 10(b) of the Charter.35Finally, a waiver of one's right to counsel should not be treated lightly,as it was in Ictensev. In the words of Madame Justice Wilson in R v.Clarkson:36"ITihis court (Supreme Court of Canada) stated with respect to thewaiver of statutory procedural guarantees in R v. Korponary, [1982 1S.C.R 41; ... at p. 49, that any waiver '... is dependent upon itbeing clear and unequivocal that the person is waiving the proceduralsafeguard and is doing so with the full knowledge of the rights the proce-dure was enacted to protect and of the effect the waiver will have onthose rights in the process.' "(emphasis in original)Too often, the duty of those in authority to advise someone of his orher right to counsel is merely given lip service. To his detriment, thathappened to Mr. Ictensev.34. (1987), 76 N.R. 198 at 206 (S.C.C.).35. Supra, note 5.36 (1986). 66 N.R. 114 at 126 (S.C.C.).

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