T-1588-87
Southam Inc., Julian Beltrame and Canadian
Newspapers Company Limited (Applicants)
v.
Minister of Employment and Immigration (Benoît
Bouchard), Chief of Adjudicators for Quebec and
the Atlantic Region (Michel Meunier), Attorney-
General of Canada and Department of Employ
ment and Immigration (Respondents)
INDEXED AS: SOUTHAM INC. V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION)
Trial Division, Rouleau J.—Ottawa, July 27,
1987.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of the press — Applications for prohibi
tion to prevent conduct of detention review hearings under
Immigration Act, 1976 until applicants granted access or right
to be heard, or for mandamus directing respondent to consider
merits of excluding applicants in each case — Charter s. 2(b)
guaranteeing freedom of press — Freedom of press including
access to judicial proceedings — Detention review hearings of
judicial or quasi-judicial nature according to tests in Minister
of National Revenue v. Coopers and Lybrand, and part of
administration of justice — Understanding of operations of
such tribunals necessary for legitimacy of authority and
achieved by public access — Right of access limited when
conflicts with competing rights — Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b)
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 29(3) (as am.
by S.C. 1985, c. 26, s. 112), 104(6), 119.
Immigration — Practice — Detention review hearings of
judicial or quasi-judicial nature according to criteria in Min
ister of National Revenue v. Coopers and Lybrand — Charter,
s. 2(b) guarantee of freedom of press including access to
judicial proceedings — Prohibition and mandamus ordered to
prevent adjudicators from conducting hearings in absence of
applicants unless right of access limited in particular case by
competing right — Applicants to have right to make submis
sions if objections to public access raised — Canadian Charter
of Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b)
— Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 29(3) (as
am. by S.C. 1985, c. 26, s. 112), 104(6), 119.
Practice — Commencement of proceedings — Applications
for declarations under Charter s. 24(1) for public access to
detention review hearings under Immigration Act, 1976, or for
right to make submissions on issue of access — Applications
by originating motion — Applications dismissed — Declara
tions may be sought by action only unless respondent expressly
consents — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 24(1).
The Chief of Adjudicators ordered that the media not be
allowed access to certain immigration detention review hearings
unless the particular migrant consented. The applicants moved
for declarations pursuant to the Charter, subsection 24(1)
directing that the Chief of Adjudicators conduct the hearings in
public, or allow the applicants to make submissions on a
case-by-case basis in support of its application to have access to
and report on the proceedings; prohibition to prevent the con
duct of the hearings until the applicants are granted the right to
be present or the right to be heard before being excluded; and
mandamus directing the respondent to consider in each case
the merits of excluding the applicants.
Held, the application for mandamus and prohibition should
be allowed.
The applications for declarations under the Charter, subsec
tion 24(1) cannot be allowed because the applicants proceeded
by means of an originating motion. Declarations may be sought
only by way of an action unless the respondent expressly
consents, and not merely acquiesces with no objection. The
respondent did not expressly consent to this form of
proceedings.
The Immigration Act, 1976 is silent with respect to public
access to detention review hearings. Where the enabling legisla
tion is silent on a point of procedure, a statutory decision-maker
is the master of his own proceedings and may determine the
procedure to be followed. However, paragraph 2(b) of the
Charter guarantees the freedom of "expression, including free
dom of the press and other media of communication." Freedom
of the press encompasses a right of access to judicial proceed
ings. The hearings in question involved a statutory body rather
than a court and it had to be determined if they are judicial or
quasi-judicial and by implication subject to accessibility. The
four tests set out by Dickson J. [as he then was] in Minister of
National Revenue v. Coopers and Lybrand to determine if a
proceeding is judicial or quasi-judicial were met by the deten
tion review hearings. It is not unreasonable to extend to pro
ceedings of such decision-makers the application of the princi
ple of public accessibility. Statutory tribunals exercising
judicial or quasi-judicial functions involving adversarial-type
processes which result in decisions affecting rights truly consti
tute part of the "administration of justice". The legitimacy of
such tribunals' authority requires that confidence in their integ
rity and understanding of their operations be maintained and
this can only be done if their proceedings are open to the public.
The applicants have a prima facie right of access to the
detention review proceedings which may, however, be limited
when it conflicts with competing rights or interests.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495.
CONSIDERED:
Re Southam Inc. and The Queen (No. 1) (1983), 3
C.C.C. (3d) 515 (Ont. C.A.).
REFERRED TO:
Wilson v. Minister of Justice, [1985] 1 F.C. 586 (C.A.);
Lussier v. Collin, [1985] 1 F.C. 124 (C.A.); Groupe des
éleveurs de volailles de l'est de l'Ontario v. Canadian
Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.);
Pacific Salmon Industries Inc. v. The Queen, [1985] 1
F.C. 504 (T.D.); Millward v. Public Service Commission,
[1974] 2 F.C. 530 (T.D.); St-Louis v. Treasury Board,
[1983] 2 F.C. 332 (C.A.); Re Southam Inc. and The
Queen (1986), 26 D.L.R. (4th) 479 (Ont. C.A.); aff g
(1985), 14 D.L.R. (4th) 683 (Ont. H.C.).
COUNSEL:
Richard G. Dearden and Alan D. Reid, Q.C.
for applicants.
Brian R. Evernden for respondents.
P. M. Jacobsen for intervenor (applicant).
SOLICITORS:
Gowling and Henderson, Ottawa, for appli
cants.
Deputy Attorney General of Canada for
respondents.
Paterson, MacDougall, Toronto, for interven-
or (applicant).
The following are the reasons for order deliv
ered orally in English by
ROULEAU J.: The applicants seek, by way of
originating motion, a number of orders. In essence
their motion concerns freedom of the press and the
public's right of access to immigration detention
review hearings presently being pursued in Hali-
fax, Nova Scotia.
The facts in this case have not been made
entirely clear, but those that are germane to the
ultimate underlying issue in dispute are sufficient
ly clear. They are set out in point form as follows:
—On July 12, 1987, 174 passengers on the M.V.
Amelie arrived in Nova Scotia and claimed to
be refugees from India. (The passengers herein-
after shall be referred to as "migrants")
—On July 15, 1987, the migrants were ordered
detained, pursant to the Immigration Act, 1976
[S.C. 1976-77, c. 52] in the gymnasium building
at the Canadian Armed Forces Base Stadacona
in Halifax.
—On July 20, 1987, immigration adjudicators
began conducting inquiries. Pursuant to subsec
tion 29(3) [as am. by S.C. 1985, c. 26, s. 112] of
the Act, an adjudicator allowed an application
by the Canadian Broadcasting Corporation that
an inquiry be conducted in public.
—On July 21, 1987, three similar applications, in
respect of three other inquiries, were allowed by
three more adjudicators.
—Pursuant to subsection 104(6) of the Act, the
continued detention of a migrant must be
reviewed by an adjudicator at least once during
each seven-day period. Since these migrants had
been detained as of July 15, 1987, their con
tinued detention had to be reviewed by July 22,
1987. As a result of the deadline approaching,
during the evening of July 21, 1987, the
adjudicators ceased conducting inquiries and
began conducting detention review hearings.
The Chief Adjudicator ordered that the media
not be allowed access to these hearings unless
the particular migrant consented; no submis
sions respecting the media's access were present
ed by their counsel (whether there was a specific
request to be heard and a specific denial by the
Chief of Adjudicators is not clear from the
evidence).
— The Immigration Act, 1976 is silent on the point
of whether detention review hearings are to be
held in public or in camera.
— During the evening of July 21, 1987 and
throughout July 22, 1987, the adjudicators con
ducted detention review hearings.
— In response to the Chief of Adjudicators deci
sion that the detentions be reviewed in camera,
the applicants moved in this Court for several
orders. The four major ones, which comprise the
substantive issues of this case, are the following:
(1) an Order pursuant to section 24 of the Canadian
Charter of Rights and Freedoms directing that the
Respondent, MICHEL MEUNIER conduct the pro
ceedings under section 104(6) of the Immigration
Act, 1976, the continued detention of persons,
allegedly being Indian migrants transported on
board the M.V. Amelie, in a manner consistent
with section 2b) of the Charter, thereby permitting
the Applicants and members of the public to exer
cise the fundamental freedom to be present at all
proceedings brought pursuant to section 104(6) of
the Immigration Act, 1976;
(2) in the alternative, an order pursuant to section 24 of
the Canadian Charter of Rights and Freedoms
directing that the Respondent, MICHEL MEUNIER
conduct the aforesaid proceedings in a manner
consistent with section 2(b) of the said Charter by
allowing the said Applicants to make submissions
on a case by case basis in support of its application
to have access to and report on the proceedings
pursuant to section 104(6) of the Immigration Act,
1976;
(3) an order in the nature of prohibition to prevent the
Respondent, MICHEL MEUNIER from conducting a
review pursuant to section 104(6) of the Immigra
tion Act, 1976 in the aforesaid proceedings until he
has extended to the Applicants the right to be
present at such proceedings, or, in the alternative,
the right to be heard before being excluded from
those proceedings;
(4) an order in the nature of mandamus directing the
Respondent MICHEL MEUNIER to exercise his duty
under the Immigration Act, 1976 to consider in
each case, when exercising his authority under sec
tion 104(6) of the said Act, the merits of excluding
the Applicants from the aforementioned proceed
ings.
It will be convenient to deal with the first two
together and the last two as another section.
I. Re: Charter, Subsection 24(1) Declarations:
This requested relief can be considered quite
summarily because of a technical procedural prob
lem. The applicants seek these two declarations by
way of an originating motion. This Court has
consistently held, however, that declarations may
be sought only by way of an action unless the
respondent expressly consents, and not merely
acquiesces with no objection [Wilson v. Minister
of Justice, [1985] 1 F.C. 586 (C.A.); Lussier v.
Collin, [1985] 1 F.C. 124 (C.A.); Groupe des
éleveurs de volailles de l'est de l'Ontario v.
Canadian Chicken Marketing Agency, [1985] 1
F.C. 280 (T.D.); and Pacific Salmon Industries
Inc. v. The Queen, [1985] 1 F.C. 504 (T.D.)]. This
rule serves to ensure that the Court will not have
to issue declaratory judgments in a factual
vacuum. Here the respondent did not expressly
consent to this form of proceedings, and indeed
some facts were in dispute, or at least uncertain.
Consequently, no declarations, pursuant to subsec
tion 24(1) of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)], can issue. This, though, does
not end the discussion of the Charter in this case;
it still must be considered in the alternative pray
ers for relief in the context of administrative law.
II. Re: Prerogative Writs of Prohibition and
Mandamus:
In requesting these two orders, the applicants in
effect seek an order prohibiting the adjudicators
from conducting the detention review hearings in
camera, or at least requiring the adjudicators in
each case to hear submissions from the applicants
on the issue of their access to the hearings.
The adjudicators exercise the authority and
powers conferred upon them by the Immigration
Act, 1976. This Act is silent with respect to the
procedural point of public access to the detention
review hearings. Where the enabling legislation is
silent on a point of procedure, a statutory decision-
maker is the master of his own proceedings and
may determine the procedure to be followed
[Millward v. Public Service Commission, [1974] 2
F.C. 530 (T.D.) and St-Louis v. Treasury Board,
[1983] 2 F.C. 332 (C.A.)]. Thus, on the surface
the adjudicators appear to have acted within their
jurisdictional limits in ordering that the detention
review hearings be held in camera.
However, superimposed upon that general rule
of administrative law is the Canadian Charter of
Rights and Freedoms. Paragraph 2(b) of the
Charter guarantees everyone the freedom of
"expression, including freedom of the press and
other media of communication." Courts that have
had to interpret this constitutional provision have
held that freedom of the press encompasses a right
of access to judicial proceedings [Re Southam Inc.
and The Queen (No. 1) (1983), 3 C.C.C. (3d) 515
(Ont. C.A.), which was reaffirmed by the same
Court in Re Southam Inc. and The Queen (1986),
26 D.L.R. (4th) 479, adopting the trial judgment
of Holland J. (1985), 14 D.L.R. (4th) 683 (Ont.
H.C.)]. Some comments of MacKinnon, A.C.J.O.
from Re Southam (No. 1 ) are germane to the case
at bar. At page 521, he wrote the following:
There can be no doubt that the openness of the courts to the
public is one of the hallmarks of a democratic society. Public
accessibility to the courts was and is a felt necessity; it is a
restraint on arbitrary action by those who govern and by the
powerful.
Then, at page 525 he continued:
It is true, as argued, that free access to the courts is not
specifically enumerated under the heading of fundamental
freedoms but, in my view, such access, having regard to its
historic origin and necessary purpose already recited at length,
is an integral and implicit part of the guarantee given to
everyone of freedom of opinion and expression which, in terms,
includes freedom of the press. However the rule may have had
its origin, as Mr. Justice Dickson pointed out, the "openness"
rule fosters the necessary public confidence in the integrity of
the court system and an understanding of the administration of
justice.
That decision arose in the context of a court
proceeding. The detention review hearing in this
case involves a statutory body exercising its func
tions and it is to be determined if they are judicial
or quasi-judicial in nature and by implication sub
ject to accessibility; does the openness rule apply
to their proceedings. Mr. Justice Dickson, as he
then was, in Minister of National Revenue v.
Coopers and Lybrand, [ 1979] 1 S.C.R. 495 deter
mined that a proceeding can be found to be judi
cial or quasi-judicial if it met certain tests and he
wrote as follows, at page 504:
(1) Is there anything in the language in which the function is
conferred or in the general context in which it it exercised
which suggests that a hearing is contemplated before a decision
is reached?
(2) Does the decision or order directly or indirectly affect the
rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many
individual cases rather than, for example, the obligation to
implement social and economic policy in a broad sense?
I am satisfied that these tests in the case at bar
have been met and it is not at all unreasonable to
extend to proceedings of such decision-makers the
application of this principle of public accessibility.
After all, statutory tribunals exercising judicial or
quasi-judicial functions involving adversarial-type
processes which result in decisions affecting rights
truly constitute part of the "administration of
justice". The legitimacy of such tribunals' author
ity requires that confidence in their integrity and
understanding of their operations be maintained,
and this can be effected only if their proceedings
are open to the public.
I am of the view that the applicants have a
prima facie right of access to the detention review
proceedings. This right, like all rights, is not abso
lute, however. That is to say, it may be limited
when it comes into conflict with other competing
rights and interests. For example, in the context of
a detention review proceeding a conflicting right
could be a migrant's section 7 right to life, liberty
or security of the person which could be jeopard
ized by the publication of his/her identity. Or, as
another example, the public's interest in national
security could, in some situations, constitute a
section 1 reasonable limit to the openness of the
hearing [e.g. section 119 of the Immigration Act,
1976 prescribes a limit upon public access to secu
rity or criminal intelligence evidence presented by
the Minister and Solicitor General].
In accordance with the foregoing, orders of
prohibition and mandamus shall issue. The
adjudicators are prohibited from conducting the
detention review hearings in the absence of the
applicants unless the applicants' right of access is
outweighed or limited in any given case by coun
terbalancing rights or interests; if any objections to
the public's access is raised, the applicants must be
given an opportunity to present submissions on this
point.
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.