Vincenzo Prata (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Thurlow J. and
Sweet D.J.—Toronto, October 26, 1972.
Immigration—Civil rights—Deportation order—Motion to
Immigration Appeal Board to stay—Certificate filed based
on criminal intelligence reports—Jurisdiction of Board oust-
ed—Whether appellant deprived of "equality before law"—
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, secs.
15, 21—Canadian Bill of Rights, s. 1(b).
Appellant appealed to the Immigration Appeal Board
from a deportation order. A certificate by the Minister of
Manpower and Immigration and the Solicitor General under
section 21 of the Immigration Appeal Board Act, R.S.C.
1970, c. I-3, was filed with the Board certifying their
opinion based on criminal intelligence reports that it would
be contrary to the national interest for the Board to exercise
its powers under section 15 to stay or quash the deportation
order. The Board rejected a motion for production of the
criminal intelligence reports for use by appellant's counsel,
and held that the filing of the certificate under section 21
stripped the Board of jurisdiction to exercise its powers
under section 15.
Held (Thurlow J. dissenting), an appeal by appellant must
be dismissed.
Per curiam: The Immigration Appeal Board has no juris
diction to grant relief under section 15 of the Immigration
Appeal Board Act upon the filing of a certificate under
section 21.
Per Jackett C.J. In the light of our legislative and judicial
history section 21 does not contemplate an opportunity to
be heard by the person concerned before a certificate is
issued.
Per Jackett C.J., Thurlow J. contra (Sweet D.J. expressing
no opinion), appellant was not deprived of the right to
"equality before the law" guaranteed by section 1(b) of the
Canadian Bill of Rights because he belonged to a class of
persons in respect of whom the Board's right to stay or
quash a deportation order under section 15 of the Immigra
tion Appeal Board Act was removed by section 21 of the
Act.
APPEAL from Immigration Appeal Board.
J. A. Hoolihan, Q.C. for appellant.
E. A. Bowie and L. R. Olsson for respondent.
JACKETT C.J.—This is an appeal from a deci
sion of the Immigration Appeal Board dismiss
ing an appeal from a deportation order made
against the appellant on October 29, 1971.
No atta was made by the appellant on the
validity of `'6rtation order. The appeal is
based upon t `e contention that the Immigration
Appeal Board erred in law in not giving consid
eration to the exercise of its powers to stay or
quash the deportation order' by reason of a
certificate filed with the Board to the effect
that, in the opinion of two Ministers of the
Crown, based upon criminal intelligence
reports, it would be contrary to the national
interest to do so.
The relevant provisions of the Immigration
Appeal Board Act are:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation
pursuant to paragraph 14(c), it shall direct that the order be
executed as soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident
at the time of the making of the order of deportation,
having regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent
resident at the time of the making of the order of deporta
tion, having regard to
(i) the existence of reasonable grounds for believing
that if execution of the order is carried out the person
concerned will be punished for activities of a political
character or will suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian
considerations that in the opinion of the Board warrant
the granting of special relief,
direct that the execution of the order of deportation be
stayed, or quash the order and direct the grant or entry or
landing to the person against whom the order was made.
21. (1) Notwithstanding anything in this Act, the Board
shall not,
(a) in the exercise of its discretion under section 15, stay
the execution of a deportation order or thereafter contin
ue or renew the stay, quash a deportation order, or direct
the grant of entry or landing to any person, or
(b) render a decision pursuant to section 17 that a person
whose admission is being sponsored and the sponsor of
that person meet the requirements referred to in that
section,
if a certificate signed by the Minister and the Solicitor
General is filed with the Board stating that in their opinion,
based upon security or criminal intelligence reports received
and considered by them, it would be contrary to the national
interest for the Board to take such action.
(2) A certificate purporting to be signed by the Minister
and the Solicitor General pursuant to subsection (1) shall be
deemed to have been signed by them and shall be received
by the Board without proof of the signatures or official
character of the persons appearing to have signed it unless
called into question by the Minister or the Solicitor General,
and the certificate is conclusive proof of the matters stated
therein.
These provisions were part of the Immigra
tion Appeal Board Act as originally enacted by
chapter 90 of the Statutes of 1966-67. The
point that I wish to make is that, since its
inception, the provision contained in section 15
has been subject to the provision in section 21.
At the opening of the appellant's appeal
before the Immigration Appeal Board, the
Chairman of the Board stated that the Board
had been served with a certificate under section
21 reading as follows:
CERTIFICATE
(SECTION 21, IMMIGRATION APPEAL BOARD ACT)
We, the undersigned hereby certify that it is our
opinion, based upon Criminal Intelligence Reports
received and considered by us, that it would be contrary
to the national interests for the Immigration Appeal
Board in the exercise of its discretion under Section 15
of the Immigration Appeal Board Act to take any action
described in paragraph 21(1) (a) of the Immigration
Appeal Board Act on or with respect to a Deportation
Order made against
VINCENZO PRATA
on October 29th, 1971, at London, Ontario
Solicitor General of Minister of Manpower and
Canada Immigration (Acting)
Signed: J. P. Goyer Signed: J. Marchand
Dated at Ottawa in the Dated at Ottawa in the
Province of Ontario this Province of Ontario this
30th day of November 30th day of November
1971. 1971.
On being so advised, counsel for the appellant
made a motion to the Board for production of
copies of the reports referred to in the section
21 Certificate for use in preparing his case. The
Board rejected the motion for the reason that,
as the statute stated that the Certificate was
conclusive proof of the matters stated therein,
the Board felt that the Certificate was not sub
ject to question.
After the Board had heard the appeal, it gave
judgment dismissing the appeal. In its reasons
for its judgment, having given its reasons why
the appeal against the deportation order should
be dismissed, the Board said:
With respect to the Board's discretionary powers under
Section 15, the Board finds that by virtue of the fact that a
Certificate has been filed under the provision of Section 21
of the Immigration Appeal Board Act, the Board has been
stripped of jurisdiction to consider the appellant's appeal
under the provisions of said Section 15 and, therefore
directs that the Order be executed as soon as practicable.
The following is a summary of the arguments
made in this Court by the appellant against the
validity of the position so taken by the Immigra
tion Appeal Board, as I understand them from
his "Memorandum of Fact and Law" and from
the verbal argument of counsel:
1. The failure to permit the appellant to see
the criminal intelligence reports on which the
section 21 Certificate was based "constitutes
a denial of natural justice". He urges that the
reports may have contained erroneous or pre
judicial material that he could have corrected
and should have had an opportunity to cor
rect. In effect this would seem to be an
argument that the appellant was deprived of
an opportunity to be heard to which he was
entitled in accordance with the principles of
natural justice.
2. The Immigration Appeal Board erred in
that it failed to construe and apply sections
15 and 21 of the Immigration Appeal Board
Act so as not to abrogate, abridge or infringe,
or authorize the abrogation, abridgment or
infringement of, certain of the rights or free
doms recognized or declared in the Canadian
Bill of Rights. He relied particularly on sec
tion 1(a) and (b) and section 2(a) and (e) of
the Canadian Bill of Rights.
In so far as the appeal is based upon the
appellant having been deprived of a right to an
opportunity to be heard when it was not given
an opportunity to answer the information con
tained in the reports on which the section 21
Certificate was based, as it seems to me, the
situation is that, if there was a right to such an
opportunity of which the appellant was
deprived, it must have been a right to a hearing
before the Ministers signed the Certificate. If
there was such a right, then, as it was not
accorded to the appellant, the appellant was
entitled to take the position before the Immigra
tion Appeal Board that the Certificate had no
effect as against him and should, therefore,
have been disregarded by the Board. Counsel
for the appellant adopted this way of putting the
contention during argument.
With reference both to the argument based on
natural justice and the argument based on the
Canadian Bill of Rights, I think it is important
to consider what, as a matter of substance
rather than form, is the effect of sections 15
and 21 respectively.
In the first place, leaving aside, for simplicity
of discussion, the case of a permanent resident,
section 15, when read with section 21, confers
on persons who are legally deportable, but are
not such risks from a security or criminal point
of view that it would be contrary to the national
interest to permit them to stay in Canada, a
right to seek exemption, on compassionate or
humanitarian grounds or for similar reasons,
from the provisions of the Immigration Act,
R.S.C. 1970, c. I-2, according to which they are
legally prohibited from staying in Canada.
Secondly, the selection of the deportable per
sons to whom such exemption should be
extended is entrusted to an independent court,
the Immigration Appeal Board, to be exercised
on the basis of evidence taken in a judicial way.
Finally, the responsibility of deciding what
persons must be excluded, in the national inter-
est, from the class of deportable persons who
may seek such exemption because of security
considerations or suspected criminal activity or
involvement, which decision is to be based on
"intelligence" reports, is imposed on designated
Ministers of the Crown, presumably, for the
traditional reasons for imposing such respon
sibilities on responsible ministers as, for
example,
(a) because the information on which such
decisions must be based is not of such a
character that it can be established by the
sort of evidence that can be put before a
judicial tribunal in the ordinary way, and
(b) because the sources of such information
will dry up if a practice is not followed of
protecting their identity.
In my view, these three statements fairly
represent the substance of sections 15 and 21
read together, and it does not affect the matter
that the draughtsman chose to accomplish the
desired result by a provision conferring jurisdic
tion on a court and a provision prohibiting that
court from exercising such jurisdiction where
certain ministers have signed a certificate to a
certain effect. In my view, the draughtsman
could have accomplished the same result by
provisions saying
(a) that a person subject to a valid deporta
tion order, other than a person who is such a
risk from a security or criminal point of view
that it would be contrary to the national inter
est to permit him to remain in Canada, may
be exempted from the provisions of the
Immigration Act according to which he is
legally prohibited from staying in Canada,
having regard to
(i) the existence of reasonable grounds for
believing that, if execution of the order is
carried out, the person concerned will be
punished for activities of a political charac
ter or will suffer unusual hardships, or
(ii) the existence of compassionate or
humanitarian considerations that warrant
such an exemption;
(b) that whether a deportable person is such
a risk from a security or criminal point of
view that it would be contrary to the national
interest to exempt him from the provisions of
the Immigration Act according to which he is
legally prohibited from staying in Canada
shall be determined by the Minister and the
Solicitor General upon the basis of security
or criminal intelligence reports received and
considered by them; and
(c) that the jurisdiction to grant exemption
under the provision described in paragraph
(a) is vested in the independent court known
as the Immigration Appeal Board.
I reject the contention that the appellant had
a right to an opportunity to answer the informa
tion contained in the reports on which the sec
tion 21 Certificate was based. In my view,
having regard to the subject matter and the
form of section 21, it is clear that Parliament
had in mind a certificate by the Ministers of an
opinion based only upon "security or criminal
intelligence reports received and considered by
them". In my view, it is clear, when section 15
and section 21 are read together, that those
sections are based on a view that, while certain
deportable persons may be allowed the privilege
of staying in Canada by reason of such grounds
as political persecution, unusual hardship, and
compassionate or humanitarian considerations
notwithstanding the prohibitory provisions of
the statute, and while the selection of the
deportable persons to whom such privilege may
be extended may be left to an independent
court to be exercised on the basis of evidence
taken in a judicial way, such a privilege cannot
be extended to persons who may be a threat to
the national interest because of security consid
erations or suspected criminal activity or
involvement and that the responsibility of
deciding what persons fall into this latter class
of persons (to whom, in the national interest,
that privilege cannot be extended) must be
imposed on members of the executive arm of
government for traditional reasons such as the
following:
(a) that the information on which such deci
sions must be based is not of such a character
that it can be established by the sort of evi
dence that can be put before a judicial tribu
nal in the ordinary way, and
(b) the sources of such information will dry
up if a practice is not followed of protecting
their identity.
It is not for this Court to express any opinion as
to the necessity, under current conditions, of
incorporating such a point of view in the stat
ute. In my opinion it is quite clear from the
wording of the statute and from our judicial and
legislative history that this traditional approach
to security and criminal intelligence is reflected
in section 21, and that provision must be inter
preted accordingly. It follows that section 21
contemplates a certificate given without the
person concerned having been given an oppor
tunity to be heard with reference thereto.
I turn now to the arguments based on the
Canadian Bill of Rights, 1960, c. 44 (see
Appendix III R.S.C. 1970).
The provisions of the Canadian Bill of Rights
relied on read as follows:
1. It is hereby recognized and declared that in Canada
there have existed and shall continue to exist without dis
crimination by reason of race, national origin, colour, reli
gion or sex, the following human rights and fundamental
freedoms, namely,
(a) the right of the individual to life, liberty, security of
the person and enjoyment of property, and the right not
to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law
and the protection of the law;
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
(a) authorize or effect the arbitrary detention, imprison
ment or exile of any person;
(e) deprive a person of the right to a fair hearing in
accordance with the principles of fundamental justice for
the determination of his rights and obligations;
In considering the arguments of the appellant
based on the Canadian Bill of Rights, it is
important to have in mind that everything of
which the appellant feels aggrieved in this
matter is the direct result of the deportation
order. There is, however, no attack on the valid
ity of the deportation order and there is no
contention that that order was not made in
accordance with the procedure laid down by the
Immigration Act and Regulations for making
such an order. Neither is there any contention
that that procedure does not meet the require
ments of "due process" contemplated by sec
tion 1(a) of the Canadian Bill of Rights or "the
principles of fundamental justice" contemplated
by section 2(e) of the Canadian Bill of Rights.
To the extent, therefore, if any, that that depor
tation order has interfered with the appellant's
"life, liberty, security of the person or enjoy
ment of property" or has affected his "rights"
or "obligations", there has been no conflict with
the requirements of section 2 of the Canadian
Bill of Rights in relation to section 1(a) or
section 2(e) thereof.
Furthermore, as there has been no attack on
the validity of the deportation order or upon the
manner in which it was made, there can be no
question of the "arbitrary" detention, imprison
ment or exile of the appellant within the mean
ing of section 2(a) of the Canadian Bill of
Rights.
As I see it, therefore, the only question to be
considered is whether the operation of section
21 of the Immigration Appeal Board Act "de-
prives" the appellant of "equality before the
law" so as to bring into play section 1(b) of the
Canadian Bill of Rights read with section 2
thereof to make section 21 inoperative in this
case.
There is no case here for a contention that
there is "discrimination by reason of race,
national origin, colour, religion or sex". The
case for invoking section 1(b) of the Canadian
Bill of Rights must be that, when section 21 of
the Immigration Appeal Board Act excludes a
class to which the appellant belongs from the
class of deportable persons to whom a substan
tive privilege may be granted under section 15,
it interferes with the right of the appellant as an
individual to "equality before the law".
It may be, as suggested by Laskin J. in Curr
v. The Queen [1972] S.C.R. 889, that section
1(b) "must be read as wholly conjunctive so as
to make the declaration of the protection of the
law a reinforcement of the requirement of
equality before the law". Certainly, the phrase
"equality before the law" has always suggested
to me that one person must not be treated
differently from another under the law. It is a
novel thought to me that it is inconsistent with
the concept of "equality before the law" for
Parliament to make a law that, for sound rea
sons of legislative policy, applies to one class of
persons and not to another class. As it seems to
me, it is of the essence of sound legislation that
laws be so tailored as to be applicable to such
classes of persons and in such circumstances as
are best calculated to achieve the social, eco
nomic or other national objectives that have
been adopted by Parliament. Application of a
substantive rule of law to one class of persons
and not to another cannot, as it seems to me, of
itself, be objectionable discrimination from the
point of view of section 1(b) of the Canadian
Bill of Rights. This is not to say that there might
not be a law that is essentially discriminatory by
reference to some other prejudice, in the same
sense as a law can be discriminatory "by reason
of race, national origin, colour, religion or sex".
Such a law, to the extent that it was thus
discriminatory, would not, I should have
thought, be a law based on acceptable 2 legisla
tive objectives adopted by Parliament and
would, to that extent, run foul of section 1(b) of
the Canadian Bill of Rights. In connection with
any contention that a law was thus in conflict
with section 1(b), however, I would, with
respect, paraphrase what Laskin J. said in the
Curr case concerning the wording of section
1(a) and say that the very large words of sec
tion 1(b) "signal extreme caution to me when
asked to apply them in negation of substantive
legislation validly enacted by a Parliament in
which the major role is played by elected repre
sentatives of the people".
As already indicated, in my opinion the ambit
of section 15 of the Immigration Appeal Board
Act must be read as being cut down by section
21, which was enacted at the same time as
section 15 and was expressed to be "Notwith-
standing anything in this Act". The result is that
there is carved out of the class of unsuccessful
appellants in respect of whom the Immigration
Appeal Board may stay or quash deportation
orders, the class of persons in respect of whom
it is decided by the responsible Ministers of the
Crown that, by reason of what is contained in
security or criminal intelligence reports, "it
would be contrary to the national interest for
the Board to take such action". In my opinion, a
person who falls in that class of persons is no
more deprived of equality before the law
because section 15 does not apply to him than
is a person of a prohibited class who applies for
an immigrant visa outside Canada. Such a
person is a person who is invoking the laws of
Canada to obtain the privilege of living in
Canada and cannot invoke the beneficent provi
sions of section 15 of the Immigration Appeal
Board Act while persons who first come into
Canada as non-immigrants and overstay their
permission to be in Canada so that deportation
orders are made against them are accorded that
privilege.
There are obvious acceptable legislative rea
sons for making the section 15 rule inappli
cable, on the one hand, to persons who are not
in Canada and, on the other hand, to security
and criminal risks. Such a limitation on the
effect of a substantive rule does not, in my
opinion, deprive an individual to whom the rule
does not apply of "equality before the law".
For the above reasons, in my opinion, the
ambit of sections 15 and 21 of the Immigration
Appeal Board Act, when those sections are
properly understood, does not require to be cut
down or extended so as not to abrogate, abridge
or infringe, or to authorize the abrogation,
abridgment or infringement of, any of the rights
or freedoms recognized and declared by section
1(a) and (b) of the Canadian Bill of Rights and
those provisions do not contravene the prohibi
tions in section 2(a) and (e).
I am, accordingly, of opinion that the appeal
must be dismissed.
* * *
THURLOW J. (dissenting)—The principal
question raised by this appeal is whether the
rights of the appellant under the Canadian Bill
of Rights to "equality before the law and the
protection of the law" and to "a fair hearing in
accordance with the principles of fundamental
justice" have been infringed by the filing before
the Immigration Appeal Board of a certificate
under section 21 of the Immigration Appeal
Board Act, which prevented the Board from
considering his case for relief under section 15
of that Act, or by the denial of disclosure to him
of the material on which the certificate was
based.
In general, the rights of an alien to come into
or to remain in Canada are conferred and gov
erned by the provisions of the Immigration Act.
The same Act provides for the detention and
deportation of aliens in defined situations and
for procedures for that purpose. By another
statute, the Immigration Appeal Board Act, a
court of appeal is constituted and is given
exclusive jurisdiction to determine, on appeal to
it, the rights of the alien under the Immigration
Act. By section 15 of the Immigration Appeal
Board Act there is conferred on the same court
a further discretionary authority, which former
ly rested exclusively with the executive branch
of the Government of Canada, to accord, on
humanitarian grounds appearing in individual
cases, certain forms of relief from deportation
orders which have been validly made pursuant
to the provisions of the Immigration Act. The
discretion so conferred is required to be exer
cised judicially. See Boulis v. M.N.R.'
Section 21(1) of the Act, however, puts a
rider on the authority so conferred, as well as
on certain other authority of the Board not
applicable in the present situation. It provides
that:
21. (1) Notwithstanding anything in this Act, the Board
shall not,
(a) in the exercise of its discretion under section 15, stay
the execution of a deportation order or thereafter contin
ue or renew the stay, quash a deportation order, or direct
the grant of entry or landing to any person, or
(b) render a decision pursuant to section 17 that a person
whose admission is being sponsored and the sponsor of
that person meet the requirements referred to in that
section,
if a certificate signed by the Minister and the Solicitor
General is filed with the Board stating that in their opinion,
based upon security or criminal intelligence reports received
and considered by them, it would be contrary to the national
interest for the Board to take such action.
Such a certificate was filed with the Immigra
tion Appeal Board in the appellant's case and it
effectively prevented the Board from consider
ing the question whether, on the facts before it,
relief should be granted under section 15. When
dealing with the matter in the course of its
reasons the Board said:
With respect to the Board's discretionary powers under
Section 15, the Board finds that by virtue of the fact that a
Certificate has been filed under the provision of Section 21
of the Immigration Appeal Board Act, the Board has been
stripped of jurisdiction to consider the appellant's appeal
under the provisions of said Section 15 and, therefore
directs that the Order be executed as soon as practicable.
The certificate read as follows:
CERTIFICATE
(SECTION 21, IMMIGRATION APPEAL BOARD ACT)
We, the undersigned hereby certify that it is our
opinion, based upon Criminal Intelligence Reports
received and considered by us, that it would be contrary
to the national interests for the Immigration Appeal
Board in the exercise of its discretion under Section 15
of the Immigration Appeal Board Act to take any action
described in paragraph 21(1) (a) of the Immigration
Appeal Board Act on or with respect to a Deportation
Order made against
VINCENZO PRATA
on October 29th, 1971, at London, Ontario
Solicitor General of Minister of Manpower and
Canada Immigration (Acting)
Signed: J. P. Goyer Signed: J. Marchand
Dated at Ottawa in the Dated at Ottawa in the
Province of Ontario, this Province of Ontario this
30th day of November 30th day of November
1971. 1971 .
In the course of the hearing before the Board
application was made on behalf of the appellant
for an order for production of the reports
referred to in the certificate but this was denied.
I have had the opportunity to read the rea
sons to be delivered by the Chief Justice and I
do not disagree with an interpretation of section
21 of the Immigration Appeal Board Act as
defining an area in which it was not intended to
confer jurisdiction on the Immigration Appeal
Board to relieve against deportation orders.
That the Board was not to grant relief of the
kinds referred to in section 21 when a certifi
cate under that section was before it is, I think,
clearly stated and this appears to me to be
emphasized by the expression "Notwithstand-
ing anything in this Act" which I take as mean
ing notwithstanding the creation by the Act of
an appeal court with jurisdiction to hear appeals
in immigration cases and the conferring on
aliens and others of rights to appeal to the
court, as well as the powers exercisable by the
court in and when disposing of an appeal to it.
Nor do I challenge for a moment either the
right of Parliament to so prescribe or the
wisdom or the expediency or indeed the neces
sity of having in the law some effective system
or provision for safeguarding the national inter
est in ensuring that aliens who are enemies of
the state and aliens who are criminals are
deported from or denied admission to Canada
even at the risk, in the interest of making the
system effective, of deporting or denying
admission to some aliens who in fact are not
enemies or criminals.
But I find it impossible to say that an alien is
being treated as equal before the law or, to put
it in another way, that his right "to equality
before the law and the protection of the law",
within the meaning of section 1(b) of the
Canadian Bill of Rights is honoured when in a
Canadian court the right to have his case for
relief considered, on such relevant facts as he
can present, on the same basis as the court is
authorized and empowered to consider and
grant relief in the cases of other aliens, is
denied to him because in his case a section 21
certificate signed by two ministers of the Crown
has been placed before the court. In such a
situation, as I see it, he is put at a disadvantage
and treated more harshly than other aliens not
on the basis of the applicability by its terms to
disqualifying facts of his case of a defined rule
of the law, but on the basis of a rule of the law
becoming applicable to his case because of the
filing of a certificate stating the opinion of two
ministers of the Crown following consideration
by them of certain matters concerning him in a
procedure in which the audi alteram partem
rule has no place. Such a system of dealing with
the problem of security may well be necessary
but to my mind it does not afford to the
individual equality before the law and the pro
tection of the law and if it is not to contravene
the Canadian Bill of Rights an express declara
tion that the statutory provisions creating it are
to operate notwithstanding the Canadian Bill of
Rights is required by section 2 of that Act.
It appears to me that a conceivable alterna
tive way of interpreting section 21 is to regard it
as a statutory creation of a new form or kind of
evidence which is not to be open to challenge
by the usual or any other means and which is to
be conclusive of the fact that in the circum
stances of the particular case the humanitarian
considerations that arise do not warrant the
granting of relief under section 15 but, as I see
it, such a provision would infringe the right of
the individual concerned to a hearing in accord
ance with the principles of fundamental justice
and would require as well, in order to be opera-
tive, a declaration in the statute that the provi
sion was to apply notwithstanding the Canadian
Bill of Rights.
I would allow the appeal and refer the matter
back to the Immigration Appeal Board for
determination on the basis that section 21 and
the certificate filed under it are inoperative to
prevent the hearing of the appellant's case on
its merits and, if appropriate, the granting of
relief under section 15 of the Immigration
Appeal Board Act.
* * *
SWEET D.J.—There is no absolute, basic, uni
versal right in an alien to enter Canada. It is for
Parliament to decide whether or not permission
to enter will be granted, and if permitted, the
terms and conditions of such entry. To this end
there is a long history of legislation granting
permission and setting out the terms, condi
tions, limitations and restrictions relating to that
permission.
Accordingly, legislation dealing with immigra
tion viz. the Immigration Act and the Immigra
tion Appeal Board Act, which legislation is per
missive, affords limited privileges rather than
conferring rights.
The whole area .;ncompassed by such legisla
tion must necessarily always touch, and often
significantly affect, humans and human rela
tionships. A rigid, unyielding enforcement of
the rules attached to permission to immigrate
would, in some cases, work hardship and cause
suffering. There were situations when that hard
ship and suffering could be avoided without the
national interest being adversely affected by a
relaxation of those limitations and restrictions.
To meet this, and to grant relief when indicated,
the executive branch of the Government would,
by the exercise of executive discretion, permit
entry and continuance in Canada in some
individual cases notwithstanding non-compli
ance with the rules attached to permission to
immigrate.
Parliament has now vested in the Immigration
Appeal Board a part, but only a part, of what
was previously solely executive discretion. The
extent to which that discretion is vested in that
Board is to be found in sections 15 and 21 of
the Immigration Appeal Board Act, which sec
tions must be read together.
It is my opinion that on the proper construc
tion of those two sections the Immigration
Appeal Board never had, and accordingly has
not now, any discretion in, and no jurisdiction
to deal with, situations anticipated by section 15
if a certificate provided for in section 21 is filed
with that Board. In this case there was such a
certificate filed.
I would dismiss the appeal.
JACKETT CJ.:
(which are conferred on it by section 15 of the Immigra
tion Appeal Board Act, R.S. 1970, c. I-3)
2 That is, it would not be acceptable, having regard to the
Canadian Bill of Rights, unless enacted "Notwithstanding
the Canadian Bill of Rights".
THURLOW J.:
Supreme Court of Canada March 30, 1972, (not yet
reported).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.