A-1357-84
Victor Manuel Regalado Brito (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: BRITO V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Marceau, MacGuigan and
Lacombe JJ.-Montréal, June 2 and 3; Ottawa,
July 11, 1986.
Immigration - Deportation - Appellant, having been
declared inadmissible in certificate signed by Minister and
Solicitor General, ordered deported though recognized as Con
vention refugee - Whether certificate conclusive proof of
contents - Appellant invoking Charter and Bill of Rights
Whether issuing certificate cruel and unusual treatment
Wording of Act showing certificate conclusive - Act not
conferring right on person whose refugee status recognized
Events before Charter in effect - Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 2, 4 ( 1 ),( 2 ), 5 ( 1 ), 19 (l)(c),(d),(e),(f),(g), 23(3),
27(2)(g), 39, 40, 41, 42, 47, 72(2),(3), 75(I)(a),(b), 76(1)(a), 84,
119 - Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e) - Canadian Charter of Rights and Freedoms, being Part
I of the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), ss. 1, 7, 12 - Immigration Appeal Board
Act, R.S.C. 1970, c. I-13 (rep. by S.C. 1976-77, c. 52, s. 128),
s. 21 - Canadian Security Intelligence Service Act, S.C. 1984,
c. 21, s. 80.
Bill of Rights - Deportation order - Appellant, declared
inadmissible in certificate signed by Minister and Solicitor
General, ordered deported though recognized as Convention
refugee - That person affected cannot present evidence to
contradict certificate not contrary to Bill of Rights s. 2(e)
Immigration Act not conferring right on person whose refugee
status recognized - Whether adjudicator, upon resuming
inquiry after appellant recognized as Convention refugee,
determining rights and obligations - Immigration Act, 1976,
S.C. 1976-77, c. 52, ss. 2, 4(1),(2), 5(1), 19 ( 1 )(c),(d),(e).(f),(g),
23(3), 27(2)(g), 39, 40, 41, 42, 47, 72(2),(3), 75(1)(a),(b),
76(1)(a), 84, 119 - Canadian Bill of Rights, R.S.C. 1970,
Appendix III, s. 2(e).
Constitutional law - Charter of Rights - Non-retroactivi-
ty - Charter cannot be used to attack deportation order
preceding coming into effect of Charter by challenging Board
decision, subsequent to Charter, dismissing appeal from said
order - Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 7, 12 - Immigration Act, 1976,
S.C. 1976-77, c. 52, ss. 2, 4(1),(2), 5(1), 19 ( 1 )(c),(d),(e).(I),(g) ,
23(3), 27(2)(g), 39, 40, 41, 42, 47, 72(2),(3), 75(1)(a),(6),
76(1)(a), 84, 119.
When the appellant first sought admission to Canada claim
ing political refugee status, the Minister of Employment and
Immigration and the Solicitor General declared him inadmis
sible. They signed a certificate stating that, based on security
and criminal intelligence reports which could not be revealed in
order to protect information sources, they believed that the
appellant would engage in or instigate subversive activities.
On a second occasion the appellant sought admission, again
claiming refugee status. While this claim was accepted, the
appellant was ordered deported by an adjudicator because, as
determined by the Ministers' certificate, he belonged to an
inadmissible class.
This is an appeal from the Immigration Appeal Board's
dismissal of his appeal against the adjudicator's deportation
order. The Board considered the question whether a section 39
certificate in principle constituted irrefutable evidence but con
cluded that a final ruling on that issue was unnecessary. Since
the reasons in support of the certificate were not known and
could not be disclosed, there was no way of knowing whether
the appellant's evidence was relevant and sufficient to prove the
Ministers' opinion mistaken. The Board was of opinion that the
refusal to disclose the reasons for issuing the certificate con
stituted "cruel and unusual treatment" in breach of Charter
section 12, but expressed the view that this was a limit pre
scribed by law that could be demonstrably justified in a free
and democratic society.
Held, the appeal should be dismissed.
Per Marceau J.: The Board was right in concluding that the
secrecy surrounding the reasons for and the sources of the
certificate make it practically impossible to prove that it was a
falsehood. This amounted to saying that, in the circumstances,
subsection 39(1) could not be interpreted as providing that only
the signatures of the Ministers were exempt from challenge. In
fact, the wording of the Act itself ("is proof' in English and
"fait foi de son contenu" in French) clearly indicates that the
certificate is to have conclusive force as evidence.
Paragraph 2(e) of the Bill of Rights is not applicable herein
since the refusal to permit contradicting of the certificate was
not made during a "hearing ... for the determination of his
rights and obligations". The sole purpose of resuming the
inquiry under subsection 47(1) was to determine "whether or
not that person is a person described in subsection 4(2)". Since
the appellant was not such a person, he never had the right to
come into Canada and recognition of his refugee status did not
confer on him a right to remain. At common law, no alien has
any right to enter this country except by leave of the Crown,
and upon such conditions as it thinks fit. In Singh, the Supreme
Court of Canada found that the procedure for recognizing
refugee status was contrary to paragraph 2(e) of the Canadian
Bill of Rights. The Court was able to make such a finding
because the Immigration Act confers a right on a person
claiming refugee status to try to persuade the authorities that
he is in fact a refugee. However, the Act does not confer any
right on someone whose refugee status has been recognized so
long as the conditions for his admission are not met.
The Charter is not applicable herein. The Board's jurisdic
tion under subsection 39(1) is strictly an appellate one. The
Board could not allow an appeal based on the Charter without
at the same time applying it retroactively. In reality, it is the
deportation order and the way in which it was made that are
put forward as infringement of the appellant's Charter rights,
and these events occurred before the Charter came into effect.
Moreover, even if it could have allowed the appeal, it would
have been limited to making the removal order that "the
adjudicator who was presiding at the inquiry should have
made". Nor can the appellant rely on the case law distinction
between a specifically retroactive application to a past act and
an application to the present consequences or continuing effect
of a past act. The question does not arise here: it is the Board's
decision refusing to overturn the deportation order which is at
issue.
Per MacGuigan J.: The conclusions of Marceau J. are
correct. Nevertheless, a different conclusion should be drawn
with respect to the application of paragraph 2(e) of the
Canadian Bill of Rights to the Immigration Act, were it not for
the decided cases.
In Prata, the Supreme Court of Canada decided that the Bill
does not apply to a similar Minister's certificate, since that
person is not seeking to have a right recognized but to obtain a
discretionary privilege.
In Singh, that same Court held that the procedure for
recognizing refugee status laid down by the Immigration Act,
1976 is inconsistent with the principles of fundamental justice
as stated in the Charter or as protected by paragraph 2(e) of
the Canadian Bill of Rights.
It is unlikely that the Supreme Court will continue to
interpret the same expression ("principles of fundamental jus
tice") differently in the two enactments, especially in the light
of the Operation Dismantle case where it was held that Cabinet
decisions are subject to judicial review under paragraph
32(1)(a) of the Charter.
This case raises two questions. The first is whether the right
to cross-examination must be denied absolutely to protect the
government's secret sources. The appellant herein argued that
he could not even know which government he was allegedly
trying to subvert. The means should be proportionate to their
end.
The second question is whether the Courts have the power to
make such judgments. In the United States, the Courts have
asserted their right to determine the good faith and the suffi
ciency of the decisions of the executive. These questions remain
unanswered in Canada.
Per Lacombe J.: The reasons of Marceau J. are agreed with,
save with respect to the scope of section 47 of the Act in
relation to paragraph 2(e) of the Canadian Bill of Rights.
When someone acquires refugee status, he does not
automatically acquire a right to remain in Canada, but he does
acquire certain rights, limited though they may be. In principle
he at least has the right to establish that he meets certain
conditions of eligibility. In such cases, the adjudicator who
resumes an inquiry pursuant to section 47 may be called upon
to determine the right and obligations of a Convention refugee
in relation to paragraph 2(e) of the Canadian Bill of Rights,
and he must accordingly conduct the inquiry and make a
decision in keeping with the principles of fundamental justice.
By filing the certificate with the adjudicator, the Ministers
imposed their opinion on her and divested her of the power to
determine whether the appellant met the conditions stated in
subsection 4(2) of the Act. It was the Ministers, and not the
adjudicator, who determined the appellant's "rights and
obligations".
The appellant's case must be decided in accordance with the
law in effect in January 1982. The Act made it a matter of
ministerial discretion to decide whether a person was eligible to
enter Canada in the cases mentioned in paragraphs
19(1)(d),(e),(i),(g) or 27 (2)(g).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Regina and Potma (1982), 37 O.R. (2d) 189
(H.C.J.); R. v. Lee (1982), 1 C.C.C. (3d) 327 (Sask.
C.A.); R. v. Longtin (1983), 5 C.C.C. (3d) 12 (Ont.
C.A.).
DISTINGUISHED:
R. v. Konechny (1983), 10 C.C.C. (3d) 233 (B.C.C.A.);
R. v. Antoine (1983), 5 C.C.C. (3d) 97 (Ont. C.A.); R. v.
Langevin (1984), 11 C.C.C. (3d) 336 (Ont. C.A.); Re
Chapman and The Queen (1984), 12 C.C.C. (3d) 1 (Ont.
C.A.); Gittens (In re), [ 1983] 1 F.C. 152 (T.D.).
CONSIDERED:
Prata v. Minister of Manpower & Immigration, [1976] 1
S.C.R. 376; Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177; Abourezk v. Reagan,
592 F.Supp. 880 (1984) (D.C.).
REFERRED TO:
Ernewein v. Minister of Employment and Immigration,
[ 1980] 1 S.C.R. 639; R v Governor of Pentonville Prison,
ex parte Azam, [1973] 2 All ER 741 (C.A.); United
States ex rel. John Turner v. Williams, 194 U.S. 279
(1904); Mitchell v. The Queen, [1976] 2 S.C.R. 570;
Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; Kleindienst v. Mandel, 408 U.S.
753 (1972); Attorney General of Canada v. Jolly, [1975]
F.C. 216 (C.A.).
COUNSEL:
Giuseppe Sciortino for appellant.
Normand Lemyre for respondent.
SOLICITORS:
Melançon, Marceau, Grenier & Sciortino,
Montréal, for appellant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: By a decision dated July 16, 1984
the Immigration Appeal Board dismissed the
appeal of the appellant against a deportation order
made against him by an adjudicator on February
17, 1982. The appeal now before the Court, pursu
ant to the provisions of section 84 of the Immigra
tion Act, 1976, S.C. 1976-77, c. 52 (hereinafter
"the Act"), challenges the validity of that decision.
Many grounds were put forward and so as to
discuss them without repetition and unnecessary
elaboration, I think it best to take the time needed
to place the matter in its factual context, carefully
review the applicable legislation and fully summa
rize the essential parts of the subject decision.
I
Factual context
Only certain of the facts out of which this
proceeding arose need to be mentioned, but their
chronology is important. A quick review in the
form of an account of events, classified by date,
will be easier and will suffice.
April 1980: the appellant entered Canada for
one month as a visitor.
May 1980: at an inquiry by an immigration
officer, the appellant claimed the status of a politi
cal refugee; the inquiry was then adjourned.
October 1980: the appellant left Canada of his
own accord and without warning, apparently
intending to go to Nicaragua, but he went to
Mexico and applied for a visa to return to Canada,
which was denied by the Canadian consulate.
November 1980: the Minister of Employment
and Immigration and the Solicitor General signed
a certificate stating, inter alia:
... it is our opinion, based on security and criminal intelligence
reports received and considered by us, which cannot be revealed
in order to protect information sources, that
Victor Manuel REGALADO
is a person described in paragraph 19(1)(f) of the Immigration
Act, 1976, his presence in Canada being detrimental to the
national interest.
January 1982: the appellant went to a Canadian
border post (after clandestinely coming from
Mexico into the United States, naturally) and
again claimed refugee status. He was immediately
placed in confinement, and applied first to the
Superior Court and then to the Court of Appeal
for a writ of habeas corpus, but failed in this
attempt.
February 1982: on the 8th, the clerk of the
Refugee Status Advisory Committee informed the
appellant that the Minister of Employment and
Immigration accepted his claim that he was a
Convention refugee on political grounds. Ten days
later, on the 17th, the adjudicator responsible for
resuming the inquiry and disposing of the appel
lant's case made a deportation order, one of the
two reasons given (and in fact the only one appli
cable) being that, in view of the certificate issued
by the two Ministers, the appellant belonged to an
inadmissible class. The appellant immediately
exercised his right of appeal to the Commission
against the adjudicator's decision.
April 1982: as part of the proceedings before the
Commission, the appellant issued subpoenas
against the two Ministers who had signed the
certificate, summoning them to appear as wit
nesses at the hearing.
May 1982: when the hearing opened the Com
mission, at the request of the Solicitor General,
excused the Ministers for not complying with the
order to appear, explaining that it would be
[TRANSLATION] "a futile and frivolous exercise to
require these gentlemen to appear". When
informed of the appellant's intention to appeal to
the Federal Court against this action, the Commis
sion at once suspended the hearing.
June 1982: the Federal Court Trial Division
refused to issue the writs of prohibition and man-
damus sought by the appellant, simply stating that
the refusal was [TRANSLATION] "on grounds of
inadmissibility". The appellant appealed the deci
sion of the Trial Division.
May 1983: the Federal Court Appeal Division
upheld the opinion of the Trial Division judge that
the case was not one which could be a basis for
prohibition or mandamus.
February 1984: the Commission resumed the
hearing of the appeal against the adjudicator's
deportation order.
September 1984: the Commission dismissed the
appeal.
Applicable legislation
It will readily be seen that all the definitions in
the Act, its general structure and its organization
are more or less involved, whether directly or
incidentally, in the discussion of a case as complex
as that before the Court. It will have to be
assumed that this general information is known,
even if it may appear needed to recall part of it
during the discussion. This preliminary review will
only cover the provisions specifically involved.
a) The fundamental provisions, to begin with,
are subsections 4(1) and (2) and 5(1):
4. (1) A Canadian citizen and a permanent resident have a
right to come into Canada except where, in the case of a
permanent resident, it is established that that person is a person
described in subsection 27(1).
(2) Subject to any other Act of Parliament, a Canadian
citizen, a permanent resident and a Convention refugee while
lawfully in Canada have a right to remain in Canada except
where
(a) in the case of a permanent resident, it is established that
that person is a person described in subsection 27(1); and
(b) in the case of a Convention refugee, it is established that
that person is a person described in paragraph 19(1)(c), (d),
(e), (f) or (g) or 27(1)(c) or (d) or 27(2)(c) or a person who
has been convicted of an offence under any Act of Parlia
ment for which a term of imprisonment of
(i) more than six months has been imposed, or
(ii) five years or more may be imposed.
5. (1) No person, other than a person described in section 4,
has a right to come into or remain in Canada.
b) Section 19, at the beginning of Part III titled
EXCLUSION AND REMOVAL, lists "Inadmissible
Classes" in its subsection (1). Paragraph (/)
should be noted:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(/) persons who there are reasonable grounds to believe will,
while in Canada, engage in or instigate the subversion by
force of any government;
c) Sections 39 to 42 are grouped under the
heading "Safety and Security of Canada" (Sûreté
et sécurité publiques). They should all be borne in
mind together with section 119, which is related:
39. (1) Notwithstanding anything in this Act, where, with
respect to any person other than a Canadian citizen or perma
nent resident, a certificate signed by the Minister and the
Solicitor General is filed with an immigration officer, a senior
immigration officer or an adjudicator stating that in the opin
ion of the Minister and the Solicitor General, based on security
or criminal intelligence reports received and considered by
them, which cannot be revealed in order to protect information
sources, the person named in the certificate is a person
described in paragraph 19(1)(d), (e), (/) or (g) or in paragraph
27(2)(c), the certificate is proof of the matters stated therein
without proof of the signatures or official character of the
person appearing to have signed the certificate unless called
into question by the Minister or the Solicitor General.
(2) The Minister shall, within thirty days following the
commencement of each fiscal year or, if Parliament is not then
sitting, within the first thirty days next thereafter that Parlia
ment is sitting, lay before Parliament a report specifying the
number of certificates referred to in subsection (1) that were
filed during the preceding calendar year.
40. (I) Where the Minister and the Solicitor General are of
the opinion, based on security or criminal intelligence reports
received and considered by them, that a permanent resident is a
person described in subparagraph 19(1)(d)(ii), or paragraph
19(1)(e) or (g) or 27(1 )(c), they may make a report to the
Chairman of the Special Advisory Board established pursuant
to section 41.
(2) In considering a report made by the Minister and the
Solicitor General pursuant to subsection (1), the Special Advi
sory Board shall
(a) request the Minister or the Solicitor General to provide
such additional information as in its opinion is necessary and
relevant; and
(b) consult with such Departments of the Government of
Canada as it deems appropriate to enable it to determine
what circumstances and information should not be disclosed
on the ground that disclosure would be injurious to national
security or to the safety of persons in Canada.
(3) The Chairman of the Special Advisory Board shall take
all necessary precautions
(a) to prevent the disclosure of any circumstances and infor
mation that in his opinion should not be disclosed on the
ground that disclosure would be injurious to national security
or to the safety of persons in Canada; and
(b) to protect the secrecy of any source of any information
referred to in paragraph (a).
(4) Where the Chairman of the Special Advisory Board
receives a report pursuant to subsection (1), he shall, as soon as
reasonably practicable, convene a meeting of that Board to
consider the report and shall send to the person to whom the
report relates at his last known address
(a) a notice that it is proposed to remove him from Canada
in accordance with this section;
(b) a statement summarizing such of the circumstances and
information available to the Special Advisory Board as will,
in the opinion of the Chairman of that Board, enable the
person to be as fully informed as possible of the nature of the
allegations made against him, having regard to the duties of
that Board and the Chairman thereof referred to in subsec
tions (2) and (3); and
(c) a notice of the time and place where the person may be
heard in respect of the proposal to remove him from Canada.
(5) The Special Advisory Board shall permit the person with
respect to whom a report has been made by the Minister and
the Solicitor General pursuant to subsection (1) to present
evidence, to be heard personally or by counsel and to have
testify, on his behalf, persons who are likely to give material
evidence.
(6) The proceedings of the Special Advisory Board shall be
separate and apart from the public.
(7) Subject to section 119, the Special Advisory Board may
require any person, other than the person with respect to whom
the report has been made by the Minister and the Solicitor
General pursuant to subsection (1), to make available to it any
relevant information and may receive any evidence or informa
tion considered credible or trustworthy by it.
(8) Where at any time before a report is made pursuant to
subsection (9), the Special Advisory Board becomes of the
opinion that the circumstances and information revealed to it
are such that the disclosure thereof would not be injurious to
national security or to the safety of persons in Canada, it shall
terminate its proceedings under this section and advise the
Minister and the Solicitor General of the termination.
(9) Where the Special Advisory Board is satisfied that a
person to whom a report of the Minister and the Solicitor
General referred to in subsection (1) relates has been given an
opportunity to be heard in accordance with this section, it shall
make a report forthwith to the Governor in Council on all
matters relating thereto.
(10) Where proceedings under this section have not been
terminated pursuant to subsection (8) and where the Governor
in Council is satisfied, after having considered the reports
referred to in subsections (1) and (9), that the person con
cerned is a person described in subparagraph 19(1)(d)(ii) or
paragraph 19(1)(e) or (g) or 27(1)(c), the Governor in Council
may make a deportation order against that person.
41. (1) There is hereby established a board, to be called the
Special Advisory Board, consisting of not more than three
members to be appointed by the Governor in Council, of whom
at least one shall be a retired judge of a superior court.
(2) The Governor in Council shall designate one of the
members appointed pursuant to subsection (1) to be Chairman
of the Special Advisory Board and one such member to be
Vice-Chairman thereof.
42. It is the function of the Special Advisory Board
(a) to consider any reports made by the Minister and the
Solicitor General pursuant to subsection 40(1); and
(b) to advise the Minister on such matters relating to the
safety and security of Canada for which the Minister is
responsible under this Act as the Minister may refer to it for
its consideration.
119. No security or criminal intelligence report referred to
in subsection 39(1), 40(1) or 83(1) may be required to be
produced in evidence in any court or other proceedings.
(The foregoing provisions are those which existed
at the time of the decisions in question. It may be
noted in passing that they were amended in 1984
by section 80 of the Canadian Security Intelli
gence Service Act, S.C. 1984, c. 21. At the present
time a Review Committee, replacing the former
Advisory Board, informs the person in question,
whether a resident or not, of the circumstances
giving rise to the report, hears his submissions,
investigates and advises the Governor in Council,
who will issue the certificate if he sees fit.)
d) Section 47 sets out the immediate conse
quences of the recognition of refugee status by the
Minister as follows:
47. (1) Where a senior immigration officer is informed that
a person has been determined by the Minister or the Board to
be a Convention refugee, he shall cause the inquiry concerning
that person to be resumed by the adjudicator who was presiding
at the inquiry or by any other adjudicator, who shall determine
whether or not that person is a person described in subsection
4(2).
(2) Where an adjudicator determines that a Convention
refugee is not a Convention refugee described in subsection
4(2), he shall make the removal order or issue the departure
notice, as the case may be, with respect to that Convention
refugee.
(3) Where an adjudicator determines that a Convention
refugee is a Convention refugee described in subsection 4(2), he
shall, notwithstanding any other provision of this Act or the
regulations, allow that person to remain in Canada.
e) Finally, subsections 72(2) and (3) confer on
the appellant his right of appeal to the Board:
72....
(2) Where a removal order is made against a person who
(a) has been determined by the Minister or the Board to be a
Convention refugee but is not a permanent resident, or
(b) seeks admission and at the time that a report with respect
to him was made by an immigration officer pursuant to
subsection 20(1) was in possession of a valid visa,
that person may, subject to subsection (3), appeal to the Board
on either or both of the following grounds, namely,
(c) on any ground of appeal that involves a question of law or
fact, or mixed law and fact, and
(d) on the ground that, having regard to the existence of
compassionate or humanitarian considerations, the person
should not be removed from Canada.
(3) Where a deportation order is made against a person
described in paragraph 2(a) or (b) who
(a) is a person with respect to whom a certificate referred to
in subsection 39(1) has been filed, or
(b) has been determined by an adjudicator to be a member of
an inadmissible class described in paragraph 19(1)(e), (J) or
(g),
that person may appeal to the Board on any ground of appeal
that involves a question of law or fact, or mixed law and fact.
Subject decision
The members of the Board, having stated that of
the reasons given by the adjudicator they adopted
only that of inadmissibility based on paragraph
19(1)(f), dwelt at length on the appellant's argu
ment that as worded the Act did not prohibit the
entering of evidence against a certificate issued
pursuant to section 39 of the Act. On this they
ultimately concluded that, in the circumstances, it
was not necessary for them to make a final ruling
on whether a section 39 certificate in principle
constituted irrefutable evidence: since, they said, in
the case at bar the reasons in support of the
certificate are not known and cannot be disclosed,
they would in any case have no way of knowing
whether the evidence which the appellant might
submit really was relevant and, above all, suffi
cient for them to conclude that the opinion of the
Ministers was mistaken and groundless.
The members of the Board then considered the
appellant's arguments based on the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)]. While they did not
think that section 7 could be applied, as the appel
lant's life, liberty and security were endangered
not by the deportation order but by the actions of
foreign states, they agreed that the refusal to
disclose to the appellant the reasons for issuing the
certificate constituted "cruel and unusual treat
ment" in breach of section 12 of the Charter.
Then, examining the situation from the standpoint
of section 1, of the Charter, they expressed the view
that only such reasonable limits prescribed by law
as could be demonstrably justified in a free and
democratic society had been placed on the appel
lant's rights, since no one had disputed the need to
protect information sources. The members of the
Board accordingly saw no ground for challenging
the validity of the deportation order and they
refused to intervene.
II
In support of his challenge to this decision by
the Board, the appellant made several arguments
essentially of the same order as those made in
support of his appeal against the adjudicator's
decision. He left undefined exactly how far he
would extend some of his arguments, and I delib
erately note this at once so I can return to the
point later, but I think they can readily be grouped
into three headings: those relating to interpretation
of the Act, those involving the Canadian Bill of
Rights [R.S.C. 1970, Appendix III] and those
based on the Canadian Charter of Rights and
Freedoms.
1—The appellant argued that by refusing to
allow him to examine the Ministers who had
signed the certificate and to submit evidence to
contradict its content, first the adjudicator and
then the Board had misinterpreted the scope which
the Act intended to confer on a certificate issued
pursuant to subsection 39(1). He submitted that it
cannot be said on a correct interpretation of the
provision that such a certificate is conclusive evi
dence, and he repeated the same arguments which
he had made before the Board. In his submission,
taking into account the rule of interpretation based
on the maxim inclusio unius exclusio alterius est
and the fact that the legislator had not adopted the
clear expression "conclusive proof" used in section
21 of the Immigration Appeal Board Act [R.S.C.
1970, c. I-13 (rep. by S.C. 1976-77, c. 52, s. 128)],
which was being replaced, it followed that only the
signatures of the Ministers were exempt from
challenge. I consider that the members of the
Board answered the two arguments correctly and I
do not think it is necessary to repeat what they
said concerning those arguments. I also consider
they were right to conclude that, in view of the
secrecy surrounding the reasons for and the
sources of the certificate, it was unrealistic for the
applicant to think he would be able to persuade
anyone that it was a falsehood, and this amounted
to saying that, in the circumstances, subsection
39(1) could not be interpreted as suggested by the
appellant; in fact, however, it was not even neces
sary in my opinion to take such a long route to
counter the appellant's argument, as it would seem
to be contradicted by the wording of the Act itself.
In its two versions, the provision reads:
39. (1) Notwithstanding anything in this Act, where, with
respect to any person other than a Canadian citizen or perma
nent resident, a certificate signed by the Minister and the
Solicitor General is filed with an immigration officer, a senior
immigration officer or an adjudicator stating that in the opin
ion of the Minister and the Solicitor General, based on security
or criminal intelligence reports received and considered by
them, which cannot be revealed in order to protect information
sources, the person named in the certificate is a person
described in paragraph 19(1)(d), (e), (/) or (g) or in paragraph
27(2)(c), the certificate is proof of the matters stated therein
without proof of the signatures or official character of the
persons appearing to have signed the certificate unless called
into question by the Minister or the Solicitor General.
39. (1) Nonobstant toute disposition de la présente loi,
l'attestation, concernant une personne autre qu'un citoyen
canadien ou un résident permanent, signée par le Ministre et le
solliciteur général, et remise à un agent d'immigration, à un
agent d'immigration supérieur ou à un arbitre, déclarant que le
Ministre et le solliciteur général estiment qu'à la lumière des
rapports secrets qu'ils détiennent en -matière de sécurité ou de
criminalité et que la nécessité de protéger les sources de
renseignements empêche de divulguer, la personne désignée
dans l'attestation est visée par les alinéas 19(1)d), e),J) ou g)
ou 27(2)c), fait foi de son contenu, l'authenticité des signatures
et le caractère officiel des personnes l'ayant apparemment
signée ne pouvant être contestés que par le Ministre ou par le
solliciteur général. [Emphasis added.]
It would seem to me that the legislator's intent to
give the certificate conclusive force as evidence is
clearly indicated by the fact that, in the English
version, it states not "is a proof" but "is proof",
and even more importantly, in the French version,
it states "fait foi de son contenu", an expression
which in Quebec and French legislative language
means "attester sans possibilité de contestation"
[provides irrefutable evidence], except sometimes
within the specific limits expressly and formally
authorized, and then as part of a special proce
dure, the "action in improbation".
As I read the provisions in question and under
stand the context in which they are placed, Parlia
ment did not intend that a certificate issued under
subsection 39(1) should be the subject of a chal
lenge and be the basis for an inquiry of a judicial
nature.
2—The second group of arguments made by the
appellant in support of his appeal relates to the
Canadian Bill of Rights. He contended essentially
that if subsection 39(1) is to be interpreted as
applicable without the person affected having the
right to enter evidence to contradict the statement
by the Ministers, the provision is inconsistent with
paragraph 2(e) of the Bill, which states:
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
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
It is apparent simply from reading the provision
that, in order to rely on paragraph 2(e) of the Bill,
the appellant must show that the refusal to con
tradict the Minister's certificate was made during
a "hearing ... for the determination of his rights
and obligations". That would not appear to be the
case. The sole purpose of resuming the inquiry
under subsection 47(1) was to determine "whether
or not that person is a person described in subsec
tion 4(2)", so as to be allowed to remain in
Canada, and one of the conditions of that subsec
tion is, in the case of a Convention refugee, that he
should not be a person described in paragraph
19(1)(f). The appellant has never had the right to
cone into Canada and recognition of his refugee
status did not confer on him a right to remain in
Canada. I take the liberty of again reproducing the
oft-cited passage from the judgment of Lord Den-
ning M.R. in R v Governor of Pentonville Prison,
ex parte Azam, [1973] 2 All ER 741 (C.A.),
concerning the position of an alien at common law,
approved by Martland J. in Prata v. Minister of
Manpower & Immigration, [1976] 1 S.C.R. 376,
at page 380:
At common law no alien has any right to enter this country
except by leave of the Crown; and the Crown can refuse
leave without giving any reason: see Schmidt v. Secretary of
State for Home Affairs [ 1969] 2 Ch. 149 at 168. If he comes
by leave, the Crown can impose such conditions as it thinks
fit, as to his length of stay, or otherwise. He has no right
whatever to remain here. He is liable to be sent home to his
own country at any time if, in the opinion of the Crown, his
presence here is not conducive to the public good; and for this
purpose, the executive may arrest him and put him on board
a ship or aircraft bound for his own country: see R. v.
Brixton Prison (Governor), ex parte Soblen [1963] 2 Q.B.
243 at 300, 301. The position of aliens at common law has
since been covered by various regulations; but the principles
remain the same.
I would also add these comments by Milton Kon-
vitz in his book, Civil Rights in Immigration,
Cornell University Press, Ithaca, New York,
U.S.A., 1953, at pages 40-41, regarding the deci
sion of the U.S. Supreme Court in United States
ex rel. John Turner v. Williams, 194 U.S. 279
(1904):
Congress, said the court, has the power to exclude aliens; to
prescribe the terms and conditions on which they may enter;
and to deport aliens who have entered in violation of law. These
powers, said the court, are no longer open to constitutional
objection, whether they be rested (a) on the principle of
international law that every sovereign nation has the power,
"inherent in sovereignty and essential to self-preservation," to
exclude aliens, or to admit them "only in such cases and upon
such conditions as it may see fit to prescribe"; ... Chief
Justice Fuller quoted with approval from an earlier opinion of
the court: "No limits can be put by the courts upon the power
of Congress to protect ... the country from the advent of
aliens whose race or habits render them undesirable as citizens,
or to expel such if they have already found their way into our
land, and unlawfully remain therein." [Emphasis added.]
Counsel for the appellant naturally relied con
siderably on the Supreme Court judgment in
Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177, in which Beetz
J., speaking for himself and two other members of
the Court, admitted that the procedure for recog
nizing refugee status followed in the case of the
appellant Singh and other cases like his was con
trary to paragraph 2(e) of the Canadian Bill of
Rights. If this was true for someone claiming
refugee status, counsel argued, it was even more
applicable for a person whose refugee status had
already been recognized. I think this neglects a
major difference. The Immigration Act confers a
right on someone who is claiming refugee status,
namely to try and persuade the authorities that he
is in fact a refugee, and it was the procedure for
exercising this fundamental right which the Court
found was not consistent with the requirements of
fundamental justice. However, the Immigration
Act does not confer any right on someone whose
refugee status has been recognized so long as the
conditions for his admission to Canada are not
met. The right at issue in Singh was exercised by
the appellant since his refugee status had been
recognized. When the inquiry resumed before the
adjudicator the appellant had no right to exercise,
and the decision imposed on the adjudicator by the
filing of the certificate did not infringe his rights.
(It is not simply a matter of distinguishing be
tween a right and a privilege, as in Mitchell v. The
Queen, [1976] 2 S.C.R. 570, a case involving the
revocation of parole, a distinction which in Singh
Wilson J. did not use in applying the Charter (at
pages 208 et seq.) and which Beetz J. did not think
was valid in the circumstances of the case (at page
228). The question here is of the total absence of a
right or privilege, for I repeat, under the Immigra
tion Act recognition of refugee status by the
Department confers no right so long as the
adjudicator has not found that the conditions in
subsection 4(2) exist.)
In my view, the appellant cannot argue on the
basis of the Canadian Bill of Rights and its para
graph 2(e) that subsection 39(1) is "inoperative",
and so conclude that there was no legal foundation
for the decision of the adjudicator and hence that
of the Board.
3—Finally, the appellant cited the Canadian
Charter of Rights and Freedoms. I mentioned
above the vagueness of some of the arguments put
forward in support of the appeal; I was thinking
particularly of those connected with the Charter.
The appellant simply submitted (page 16 of his
submission) that [TRANSLATION] "before the
Board he had been deprived of certain rights con
tained in the Charter", namely those mentioned in
section 7 regarding life, liberty and security of the
person and in section 12 regarding protection
against cruel and unusual treatment. The appel
lant recognized, as did the Board, that the rule
against retroactivity prevented him from relying
on the provisions of the Charter to challenge the
actions taken by the adjudicator or the deportation
order itself, since these were facts which occurred
before the Constitution Act, 1982 [Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] came into
effect. This is why he took care to state that he
had been deprived of Charter rights before the
Board; but he gave no further details. The mem
bers of the Board also did not explain what they
meant by "events", when they said that the Chart
er should be applied to "events subsequent" to its
coming into effect. However, clearly some details
are necessary and it is in providing these that one
can see that the appellant's attempt to avoid the
effect of the rule against retroactivity is vain.
I think it should be borne in mind that the
Board's jurisdiction in the case of a deportation
order made against someone who has been subject
of a certificate under subsection 39(1) is strictly an
appellate jurisdiction. This is clear from subsec
tions 72(2) and 72(3), cited above, to which may
be added paragraphs 75(1)(a) and 75(1)(b) and
76(1)(a):
75. (1) The Board may dispose of an appeal made pursuant
to section 72
(a) by allowing it;
(b) by dismissing it; or
76. (1) Where the Board allows an appeal made pursuant to
section 72, it shall quash the removal order that was made
against the appellant and may
(a) make any other removal order that the adjudicator who
was presiding at the inquiry should have made; or
How then could the Board allow an appeal for
reasons based on the Charter without at the same
time applying the Charter retroactively, that is to
past events? There is no question that in reality it
is the deportation order and the way in which it
was made that the appellant is seeking to put
forward as an infringement of his Charter rights,
and these "events", to use the Board members'
word, occurred before the Charter came into
effect; they are past events. The Board did not
have the power to set aside a deportation order
made in accordance with law, and moreover, in the
unlikely event that it was able to allow the appeal,
it would have to make the removal order that "the
adjudicator who was presiding at the inquiry
should have made". Accordingly, the hearing
before the Board was clearly an "event" subse
quent to the coming into effect of the Charter, but
it was an event which could not possibly have any
consequences for the rights which the appellant
might claim were guaranteed by the Charter.
It is true that though the non-retroactivity of the
Charter is a principle which no one questions
(reference is often made on this point to the rea
sons of Eberle J. in Re Regina and Potma (1982),
37 O.R. (2d) 189 (H.C.J.); of Bayda C.J.S. of the
Saskatchewan Court of Appeal in R. v. Lee
(1982), 1 C.C.C. (3d) 327; and of Blair J. of the
Ontario Court of Appeal in R. v. Longtin (1983), 5
C.C.C. (3d) 12)), the courts have often made an
effort to distinguish between a specifically retroac
tive application to a past act and an application to
the present consequences or continuing effect of a
past act. (See inter alla R. v. Konechny (1983), 10
C.C.C. (3d) 233 (B.C.C.A.); R. v. Antoine (1983),
5 C.C.C. (3d) 97 (Ont. C.A.); R. v. Langevin
(1984), 11 C.C.C. (3d) 336 (Ont. C.A.); and Re
Chapman and The Queen (1984), 12 C.C.C. (3d)
1 (Ont. C.A.)). Thus, it might be argued that if a
deportation order cannot be quashed on grounds
based on the Charter, its eventual implementation
might be. This is what Mahoney J. of this Court
then of the Trial Division, suggested in Gittens (In
re), [1983] 1 F.C. 152. However, clearly the ques
tion does not arise here: it is the Board's decision
refusing to overturn the deportation order which is
at issue. In my opinion, the appellant cannot rely
on arguments based on the Charter to challenge
the validity of that decision.
Having thus concluded my analysis, it remains
to formulate the general conclusion. Though I am
far from subscribing to all the reasons given by the
Commission, and have serious reservations as to
the reasoning which it used, I consider that its
conclusion is nevertheless correct. In any case, the
appellant has submitted no argument on the basis
of which this Court could intervene.
I would therefore dismiss the appeal.
* * *
The following is the English version of the
reasons for judgment rendered by
MACGUIGAN J.: I concur in the conclusions of
my brother Marceau J. Nevertheless, I would
draw a contrary conclusion with regard to the
application of paragraph 2(e) of the Canadian Bill
of Rights to the Immigration Act, 1976 were it not
for the decided cases.
On the one hand, according to Prata v. Minister
of Manpower & Immigration, [1976] 1 S.C.R.
376, the Bill does not apply to a certificate by a
Minister that the permanent presence of an
individual in Canada would be detrimental to the
national interest, since that person is not seeking to
have a right recognized but to obtain a discretion
ary privilege.
On the other hand, the Supreme Court has more
recently held, in Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R.
177, that the procedure for recognizing refugee
status laid down by the Immigration Act, 1976 is
inconsistent with either "the principles of funda
mental justice" stated in section 7 of the Canadian
Charter of Rights and Freedoms (three judges), or
with "the principles of fundamental justice" pro
tected by paragraph 2(e) of the Bill of Rights
(three judges). Speaking for the first group of
judges, Wilson J. stated (at pages 209-210):
The creation of a dichotomy between privileges and rights
played a significant role in narrowing the scope of the applica
tion of the Canadian Bill of Rights, as is apparent from the
judgment of Martland J. in Mitchell v. The Queen, [1976] 2
S.C.R. 570... .
I do not think this kind of analysis is acceptable in relation to
the Charter. It seems to me rather that the recent adoption of
the Charter by Parliament and nine of the ten provinces as part
of the Canadian constitutional framework has sent a clear
message to the courts that the restrictive attitude which at
times characterized their approach to the Canadian Bill of
Rights ought to be re-examined. I am accordingly of the view
that the approach taken by Laskin C.J. dissenting in Mitchell is
to be preferred to that of the majority as we examine the
question whether the Charter has any application to the adjudi
cation of rights granted to an individual by statute.
In Mitchell the issue was whether the Canadian Bill of
Rights required s. 16(1) of the Parole Act to be interpreted so
as to require the Parole Board to provide a parolee with a fair
hearing before revoking his parole. Laskin C.J. focussed on the
consequences of the revocation of parole for the individual and
concluded that parole could not be characterized as a "mere
privilege" even although the parolee had no absolute right to be
released from prison. He said at p. 585:
Between them, s. 2(c)(i) and s. 2(e) [of the Canadian Bill of
Rights] call for at least minimum procedural safeguards in
parole administration where revocation is involved, despite
what may be said about the confidentiality and sensitiveness
of the parole system.
It seems to me that the appellants in this case have an even
stronger argument to make than the appellant in Mitchell. At
most Mr. Mitchell was entitled to a hearing from the Parole
Board concerning the revocation of his parole and a decision
from the Board based on proper considerations as to whether to
continue his parole or not. He had no statutory right to the
parole itself; rather he had a right to proper consideration of
whether he was entitled to remain on parole. By way of
contrast, if the appellants had been found to be Convention
refugees as defined in s. 2(1) of the Immigration Act, 1976
they would have been entitled as a matter of law to the
incidents of that status provided for in the Act. Given the
potential consequences for the appellants of a denial of that
status if they are in fact persons with a "well-founded fear of
persecution", it seems to me unthinkable that the Charter
would not apply to entitle them to fundamental justice in the
adjudication of their status.
The view of the second group of judges was
stated by Beetz J. (at page 228):
Accordingly, the process of determining and redetermining
appellants' refugee claims involves the determination of rights
and obligations for which the appellants have, under s. 2(e) of
the Canadian Bill of Rights, the right to a fair hearing in
accordance with the principles of fundamental justice. It fol
lows also that this case is distinguishable from cases where a
mere privilege was refused or revoked, such as Prata v. Minis
ter of Manpower and Immigration, [1976] 1 S.C.R. 376, and
Mitchell v. The Queen, [1976] 2 S.C.R. 570.
I am not persuaded that the Supreme Court will
continue to interpret the same expression differ
ently in the two enactments, especially in light of
Operation Dismantle Inc. et al. v. The Queen et
al., [1985] 1 S.C.R. 441, where it held that Cabi
net decisions are subject to judicial review under
paragraph 32(1)(a) of the Charter.
This case really raises two questions. The first
is: must the right to cross-examination be denied
absolutely in order to protect the government's
secret information sources? In the case at bar the
appellant argued that he could not even know
which government was in question from the refer
ence to paragraph 19(1)(f) of the Immigration
Act, 1976. It seems to me that the means should be
proportionate to their end.
The second question is as to whether the courts
have the power to make such judgments. In the
United States, despite their general tendency not
to challenge the decisions of a higher authority in
matters of national security (Kleindienst v.
Mandel, 408 U.S. 753 (1972)), U.S. courts have
nevertheless asserted their right to determine the
good faith and the sufficiency of the decisions of
the executive.
For example, in Abourezk v. Reagan, 592
F.Supp. 880 (1984) (D.C.), at pages 887-888, a
federal judge stated:
[2] In the view of the Court, an alien invited to impart
information and ideas to American citizens in circumstances
such as these may not be excluded under subsection (27) solely
on account of the content of his proposed message. For
although the government may deny entry to aliens altogether,
or for any number of specific reasons, it may not, consistent
with the First Amendment, deny entry solely on account of the
content of speech.
[3] ... the specific reasons for the exclusion of these four
aliens thus assume paramount importance and that issue, as
discussed below, requires the Court to consider the classified
affidavits submitted by the government.
V
[4] The government has offered for the Court's in camera
inspection a classified affidavit of Under Secretary Eagleburger
with respect to each of the three cases.
[5] The Court has accordingly reviewed the Eagleburger
affidavits in camera. On the basis of that review, it has
concluded that facially legitimate reasons exist for denying
visas to the four individuals whose entry is being sought in these
actions. Essentially, these applicants were not denied entry
because of the content of the expected speeches, but because of
their personal status as officials of governments or organiza
tions which are hostile to the United States.
These questions remain unanswered in Canada.
* * *
The following is the English version of the
reasons for judgment rendered by
LACOMBE J.: In his reasons, Marceau J. has
clearly summarized the essential elements of the
case, so that it is not necessary to state them anew
here. While I concur with his reasons to dismiss
the present appeal, I do not entirely agree with
him concerning the scope of section 47 of the
Immigration Act, 1976 (hereinafter referred to as
"the Act"), in relation to paragraph 2(e) of the
Canadian Bill of Rights.
In November 1980, the Minister of Employment
and Immigration and the Solicitor General of
Canada considered that the appellant should not
be admitted to Canada for the reasons given in
their certificate.
Certificate
(Section 39, Immigration Act, 1976)
We, the undersigned, hereby certify that it is our opinion,
based on security and criminal intelligence reports received and
considered by us, which cannot be revealed in order to protect
information sources, that
Victor Manuel REGALADO
is a person described in paragraph 19(1)(f) of the Immigration
Act, 1976, his presence in Canada being detrimental to the
national interest.
"Robert Kaplan" "Lloyd Axworthy"
Solicitor General of Canada Minister of Employment and
Immigration
Dated at OTTAWA/HULL in the Dated at OTTAWA/HULL in the
province of Ontario this 14th province of Ontario this 31 day of
day of November, 1980. October, 1980.
This certificate was filed on January 7, 1982 by
counsel for the respondent Minister with the
adjudicator responsible for holding the inquiry
mentioned in subsection 23(3) of the Act, after the
appellant had returned to Canada on January 5,
1982, this time without a visa, and claimed the
status of a "political" refugee from an immigra
tion officer at a point of entry at the U.S. border.
It should be noted that a year earlier, in January
1981, the Canadian consulate in Mexico had
already denied him a visa for Canada. It follows
that in January 1982 the Canadian immigration
authorities still considered that the appellant was
in the same inadmissible class of persons on that
date.
By a letter dated February 8, 1982 the clerk of
the Refugee Status Advisory Committee advised
the appellant that "the Minister of Employment
and Immigration has decided that you are a Con
vention refugee as defined by section 2 of the
Immigration Act, 1976".
The adjudicator found that the Ministerial cer
tificate of November 1980 was conclusive and, on
the termination of her inquiry resumed pursuant to
section 47, made a deportation order against the
appellant on February 17, 1982 on the ground
primarily that he fell within the exception men
tioned in subsection 4(2), namely that of para
graph 19(1)(f). The adjudicator prevented the
appellant from challenging the opinion of the Min
isters as stated in their certificate, by refusing to
allow them to be summoned for cross-examination
on its content and by refusing to allow the appel
lant to submit evidence of his own to the contrary.
This was also the position taken by the Immigra
tion Appeal Board.
While the certificate by the Ministers was the
only evidence presented and allowed, it must be
said that the adjudicator and the Board left coun
sel for the appellant entirely free to argue in law
against the making and maintenance of the depor
tation order.
It is true that someone who is recognized as
having Convention refugee status does not thereby
automatically acquire a right to remain in Canada.
He must also meet the conditions stated in subsec
tion 4(2) of the Act. However, the Act appears to
confer on him certain rights, limited though they
may be, which it does not give to an ordinary alien
not entitled to that status.
In Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177, under the gen
eral heading "The Scheme of the Immigration
Act, 1976", there are the following observations by
Wilson J., at pages 189, 190 and 204:
Equally, at common law an alien has no right to enter or
remain in Canada except by leave of the Crown: Prata v.
Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.
However, the Immigration Act, 1976 does provide Conven
tion refugees with certain limited rights to enter and remain in
Canada .... When a person who is in Canada has been deter
mined to be a Convention refugee, s. 47(1) requires the
adjudicator to reconvene the inquiry held pursuant to s. 23 or s.
27 in order to determine whether the individual is a person
described in s. 4(2) of the Act. Section 4(2) provides that a
Convention refugee "while lawfully in Canada [has] a right to
remain in Canada ..." except where it is established that he or
she falls into the category of criminal or subversive persons set
out in s. 4(2)(b). If it is determined that the person is a
Convention refugee described in s. 4(2), s. 47(3) requires the
adjudicator to allow the person to remain in Canada notwith
standing any other provisions of the Act or Regulations.
As noted earlier, s. 5(1) of the Act excludes from persons other
than those described in s. 4 the right to come into or remain in
Canada. The appellants therefore do not have such a right.
However, the Act does accord a Convention refugee certain
rights which it does not provide to others, namely the right to a
determination from the Minister based on proper principles as
to whether a permit should issue entitling him to enter and
remain in Canada (ss. 4(2) and 37); the right not to be
returned to a country where his life or freedom would be
threatened (s. 55); and the right to appeal a removal order or a
deportation order made against him (ss. 72(2)(a), 72(2)(b) and
72(3)).
Though Wilson J. disposed of this case, with the
concurrence of two other members of the Court,
on the basis of the Canadian Charter of Rights
and Freedoms, her views did not differ from those
of Beetz J. who, with the concurrence of his two
brethren, relied exclusively on the Canadian Bill
of Rights. At page 230, he said:
The Immigration Act, 1976 gives convention refugees the
right to "remain" in Canada, or, if a Minister's Permit cannot
be obtained, at least the right not to be removed to a country
where life and freedom is threatened, and to re-enter Canada if
no safe country is willing to accept them. The rights at issue in
these cases are accordingly of vital importance for those
concerned.
I do not think it is possible to say as a general
proposition that a Convention refugee acquires
rights only after an adjudicator has determined
that he meets the conditions stated in subsection
4(2) and that, therefore, he never has any right to
vindicate before the adjudicator. In principle, to
begin with, he at least has the right to establish
that he meets certain conditions of eligibility, such
as that he is legally in Canada and that he has not
committed the criminal offences mentioned in
paragraphs 4(2)(b) and 19(1)(c) of the Act. These
are material and verifiable facts which can be
proven and contradicted in the usual way and can
be objectively assessed by the adjudicator. In such
cases, an adjudicator who resumes an inquiry pur
suant to section 47 may be called upon to deter
mine the rights and obligations of a Convention
refugee in relation to paragraph 2(e) of the
Canadian Bill of Rights, and he must accordingly
conduct his inquiry and make his decision in keep
ing with the principles of fundamental justice: but
that is not the appellant's case.
Paragraphs 19(1)(d),(e),(f) and (g) of the Act
exclude from Canada certain classes of persons
"who there are reasonable grounds to believe" will,
if admitted to Canada, engage in acts of espionage,
subversion, serious criminal violence and so on.
These exclusions, listed in paragraph 4(2)(b) of
the Act, are all exceptions preventing a Conven
tion refugee from claiming the right to remain in
Canada because, under section 47, he does not and
cannot meet the conditions stated in subsection
4(2).
As a consequence of the issuing of the Ministeri
al certificate of November 1980 and its being filed
with the adjudicator, not only did the appellant
fall within the class of persons mentioned in para
graph 19(1)(f), he thereby fell within one of the
exceptions stated in paragraph 4(2)(b). All that
was needed for this to be so was that the two
Ministers should so state in their certificate made
pursuant to subsection 39(1) of the Act, in force at
the time. They did not have to say or prove
anything further: Attorney General of Canada v.
Jolly, [1975] F.C. 216 (C.A.).
In view of the actual wording of subsection
39(1) of the Act, and by its very nature, the
Ministerial certificate constituted conclusive and
irrefutable evidence which was binding on the
adjudicator that the appellant did not meet, and
could not meet, the conditions for admission to
Canada. First, under subsection 39(1) the Minis
ters, in order to protect information sources, could
not disclose the content of the secret security or
criminal intelligence reports used by them to form
their opinions regarding the appellant. Second,
section 119 of the Act prohibited such reports
from being filed. It accordingly followed that the
appellant fell within a class of excluded persons,
that of paragraph 19(1)(f), and an exception men
tioned in paragraph 4(2)(b).
Placing the appellant in the paragraph 19(1)(f)
class of excluded persons, which meant that he fell
within one of the exceptions in paragraph 4(2)(b),
was a matter exclusively for the Minister of
Employment and Immigration and the Solicitor
General of Canada to decide in their administra
tive discretion. In such a case, the determination
that the appellant did not meet the conditions
stated in subsection 4(2) was not for the adjudica
tor to make, as she had no power of adjudication
over the Ministerial opinion, as stated by the
Ministers in their certificate; the only function of
the adjudicator was to ascertain that such certifi
cate was in the evidence and, accordingly, she had
to comply with subsection 47(2) of the Act and
"make the removal order". She thus could not
again decide what, under the Act, had in fact been
previously decided by others on whom the Act had
conferred the power to do so.
In Prata v. Minister of Manpower & Immi
gration, [1976] 1 S.C.R. 376, it was held that by
filing a certificate issued pursuant to section 21 of
the Immigration Appeal Board Act, similar to that
mentioned in subsection 39(1) of the Immigration
Act, 1976, the Minister and the Solicitor General
could divest the Immigration Appeal Board of its
equity jurisdiction in an appeal validly filed before
it. By filing the Ministerial certificate of Novem-
ber 1980 with the adjudicator, the Ministers
imposed their decision on her and divested her of
the power to determine whether the appellant met
the conditions stated in subsection 4(2) of the Act,
as they had decided this matter themselves. Filing
of the Ministerial certificate divested her of any
jurisdiction to reach any other conclusion than
that of the Ministers. It was they and not the
adjudicator who determined the appellant's "rights
and obligations". In this sense, and in this sense
only, therefore, it is correct to say that in resuming
her inquiry pursuant to section 47 of the Act, the
adjudicator did not herself undertake "the deter
mination of [the appellant's] rights and obliga
tions" under paragraph 2(e) of the Canadian Bill
of Rights.
In the case at bar the appellant did not dispute
before the adjudicator, or indeed before anyone,
that the was in fact the subject of the Ministerial
certificate, or that that certificate had been duly
filed with the adjudicator. Additionally, he never
directly challenged the validity of the certificate
by the appropriate means, on the ground for exam
ple that the Ministers should have heard him
before issuing it in November 1980 or before filing
it with the adjudicator in January 1982. He only
asked to be allowed to contradict the opinion
which the Ministers had formed of him in the light
of secret security and criminal intelligence reports
which they had in their possession and had con
sidered, undoubtedly with a view to challenging
the decision taken by them concerning him. The
adjudicator (and subsequently the Board) could
not grant such a request. As has been indicated,
under subsection 39(1) the Ministers could not
disclose the content of these secret reports and
section 119 prohibited the appellant from asking
that they be filed; the adjudicator therefore did not
err in law and could not have infringed the princi
ples of fundamental justice in resuming her inqui
ry, since it was not she who determined the appel
lant's rights and obligations but the Ministers who
predetermined them in their certificate of Novem-
ber 1980, the validity of which cannot be doubted,
were it only for the fact the appellant had done
nothing to have it set aside and removed from his
record.
In Singh, Beetz J. cited with approval (at pages
231 to 234) the dissenting opinion of Pigeon J. in
Ernewein v. Minister of Employment and Immi-
gration, [1980] 1 S.C.R. 639, which contains the
following passage [at page 660]:
In Minister of Manpower and Immigration v. Hardayal
([1978] 1 S.C.R. 470), this Court accepted that where the
statute provided for the issue of a special certificate by adminis
trative decision this was to be taken as final and as excluding
the audi alteram partem rule, but such is not the case with
respect to the determination of refugee status.
The appellant's case must be decided in accord
ance with the law in effect in January 1982. The
Immigration Act, 1976 made it a matter of minis
terial discretion to decide, in the first and last
resort, whether a person was eligible to enter
Canada, in the cases mentioned in paragraphs
19(1)(d),(e),(f),(g) or 27(2)(g), by the issuing
and, if necessary, release of a certificate to that
effect.
It follows that the deportation order of the
appellant was validly made by the adjudicator in
accordance with the law in effect in 1982.
I would dispose of the appeal as suggested by
Marceau J.
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.