Judgments

Decision Information

Decision Content

T-150-88
Mahmoud Mohammad Issa Mohammad (Appli- cant)
v.
Minister of Employment and Immigration; Minis ter of State for Immigration; and Governor in Council (Respondents)
INDEXED AS: MOHAMMAD V. CANADA (MINISTER OF EMPLOY MENT AND IMMIGRATION)
Trial Division, Jerome A.C.J.—Toronto, February 29; Ottawa, March 11, 1988.
Immigration — Deportation — Applicant granted landing by misrepresenting criminal record — Convicted in 1968 in Greece of offences relating to attack on Israeli airliner — Government ordering deportation inquiry — Extensive media coverage — Certiorari sought quashing s. 27(1) report and s. 27(3) direction for inquiry, and order prohibiting inquiry from proceeding — Applicant given adequate information and op portunity to satisfy Governor in Council or Minister of rehabilitation — Decision to hold inquiry administrative — Fairness not requiring applicant to be involved in s. 27(3) deliberations leading to inquiry — Ministers' comments in House of Commons not indicative of intent to deport without due process — Dual responsibility of Minister: to be fair to applicant while upholding laws of Canada — Adjudicators' expertise combined with right of appeal satisfying require ments of independence and impartiality — Application dismissed.
Judicial review — Prerogative writs — Certiorari Quashing report under s. 27(1) Immigration Act, 1976 and direction for inquiry under s. 27(3) — Prohibition — Appli cant granted landing by misrepresenting criminal record — No unfair treatment — Adequate information and opportunity provided to satisfy Governor in Council and Minister of rehabilitation — Decision to hold inquiry administrative — Duty of fairness minimal — Not requiring applicant's involve ment in s. 27(3) deliberations — Adjudication process not biased as result of Ministers' comments in House of Commons — Comments, read in entire context, not indicative of intent to deport without due process — Adjudicators' expertise and provision for right of appeal satisfying requirements of independance and impartiality.
Constitutional law — Charter of Rights — Life, liberty and security — Applicant misrepresenting criminal record — Granted permanent resident status — Deportation inquiry
ordered — Whether, as permanent resident, applicant deprived of Charter rights should deportation order issue.
The applicant and his family were granted permanent resi dent status in February 1987. In December 1987, the applicant was asked to report to an immigration officer regarding his former activities. The Immigration Department had found out that the applicant had been convicted in Greece, in 1968, of offences relating to the attack on an Israeli airliner in which one person was killed. The applicant had two options: to leave voluntarily or, to submit to a deportation inquiry. He was told that he would be given until the end of January 1988 to leave voluntarily. However, on January 20, he was served with a notice of inquiry. According to the immigration officer, the government had ordered the inquiry because of pressure from the media. The applicant seeks an order for certiorari quashing the report made under subsection 27(1) of the Immigration Act, 1976 and the direction for inquiry made under subsection 27(3), and an order prohibiting the deportation inquiry from proceeding. The applicant submits that he was treated unfairly in that he was not given the opportunity to satisfy either the Governor in Council that he had been rehabilitated since his crime or the Minister that it would not be detrimental to the national interest to allow him to remain in Canada. He further submits that he is entitled to a higher standard of fairness than was required in Kindler v. MacDonald, [1987] 3 F.C. 34 (C.A.) since, as a permanent resident, he will be deprived of his rights under the Charter should a deportation order issue. With respect to the relief of prohibition, the applicant asserts that the adjudication process has been tainted with bias because of certain Ministers' comments in the House of Commons alleged ly indicating that a decision had been made prior to the inquiry. It is further submitted that the inquiry would infringe his right to be heard by an independent and impartial tribunal in view of the position of the adjudicator within the Department (the institutional bias argument).
Held, the application should be dismissed.
The applicant's argument that he was treated unfairly in that he was not given the opportunity to satisfy either the Governor in Council or the Minister, was rejected. The applicant had relied on the Immigration Appeal Board decision in Simpson v. Canada (Minister of Employment & Immigration) which stands for the proposition that an applicant must be given the opportunity to satisfy the Minister as to his rehabilitation. No authority could be cited where the Simpson principle had been applied to persons who attained landing by misrepresenting their criminal record. Moreover, the words "have satisfied the Governor in Council (or Minister)" in paragraphs 19(1)(c) and (e) of the Act are in the past tense, thereby providing an exemption for those who have already taken steps to show their rehabilitation. Finally, adequate information and opportunity to make submissions were provided in this case. The immigra tion officer fairly outlined the Department's concerns and the legislative provisions at play. The applicant was given the opportunity to consult counsel. It is significant that it is still open to the applicant in the course of the proceedings under subsection 32(2) or paragraph 72(1)(b) to establish his rehabilitation. The immigration officer was not required, in the
circumstances of this case, to do anything further before a report could be prepared. The officer was therefore within her jurisdiction to make the report.
The applicant's argument based on the Federal Court of Appeal decision in Kindler v. MacDonald fails. In that case, it was held that the decision to order an inquiry under subsection 27(3) was an administrative one. The duty of fairness was found to be minimal. As MacGuigan J. pointed out the decision involved is "merely a decision to hold a hearing, not to deprive the applicant of his rights to life, liberty or security of the person". The ruling in Kindler as to the nature of a subsection 27(3) decision is unrelated to the status of the individual before the Court. It applies to persons having an illegal status (such as Kindler) as well as to landed immigrants (such as the applicant herein). The latter retains throughout the inquiry process important substantive and procedural rights (see subsections 70(1) and 72(1) of the Act). Fairness does not require that he be involved in the subsection 27(3) deliberations which lead only to the conduct of an inquiry.
The argument that the decision to hold an inquiry was taken for an improper motive since it resulted from media coverage and from statements made by the Ministers in the House of Commons also fails. There were no statements of intent to deport without due process. What was indicated by the respondents' representatives was that, because of the high profile of the case, the applicant would have to accelerate his choice to leave the country voluntarily or stay and submit to an inquiry. The applicant delayed and the inquiry was ordered. The immigration considerations which led to the decision were valid.
The submission that the adjudication process has been taint ed with bias because of the Ministers' comments in the House of Commons was rejected. The Minister of Employment and Immigration is required, under the scheme of the Act, to take a position with regard to each applicant. He has a dual responsi bility: he must be fair to the applicant while upholding the laws of Canada and the policies of Parliament. That position must always be determined before the case is heard. The process does not become improper because the Minister has stated his position publicly. Moreover, the comments complained of must be placed in their context. In situations where bias is allegedly revealed in a public address, it has been held that the address must be considered as a whole, not minutely examined. Here, other portions of the Hansard transcript indicated that due process would be applied and that all necessary legal proce dures would be followed. Finally, the persons delivering the controversial remarks were not the decision-makers, unlike the usual cases where the "speaker" is the decision-maker. While the Ministers' comments might have been more temperate, nevertheless, placed in their proper context, they did not have the effect of tainting the adjudicative process with bias.
The submission that the adjudicator's position is tainted by institutional bias is also without merit. The structure and practice of the Adjudication Directorate of the Department need not provide for a tribunal which enjoys the same degree of independence as a court or even as the Immigration Appeal Board. The adjudicators fall somewhere between the other employees of the Department and the members of the Immi gration Appeal Board in terms of independence. The adjudica- tive system provides for an initial decision by a person within the Department who has been trained in the relevant subject areas; it also provides for appeals to a more independent tribunal. This combination of expertise and the right of appeal was held in MacKay v. The Queen, [1980] 2 S.C.R. 370 to satisfy the requirements of independence and impartiality. The adjudicator must be free from real or apparent interference in his decision making process. That standard has been met. There was no evidence that a Minister has ever directed an adjudica tor to decide in a particular way.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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. 7.
Criminal Code, R.S.C. 1970, c. C-34, ss. 76.2(b) (as added by S.C. 1972, c. 13, s. 6), 83(1)(a) (as am. by S.C. 1976-77, c. 53, s. 3), 217.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(1)(c),(e), 27(I)(a),(e),(3), 32(2), 59, 60, 61, 70(1), 72(1).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Kindler v. MacDonald, [1987] 3 F.C. 34 (C.A.); Cac- camo v. Minister of Manpower and Immigration, [1978] 1 F.C. 366; (1977), 16 N.R. 405 (C.A.); affg [1977] 2 F.C. 438 (T.D.).
APPLIED:
Van Rassel v. Canada (Superintendent of the RCMP), [1987] 1 F.C. 473 (T.D.).
DISTINGUISHED:
Simpson v. Canada (Minister of Employment & Immi gration) (1987), 3 Imm. L.R. (2d) 20 (I.A.B.); Tsang v. Canada (Minister of Employment & Immigration), deci sion dated 7/1/88, I.A.B., not yet reported; Roncarelli v. Duplessis, [1959] S.C.R. 122; Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al. (1976), 14 O.R. (2d) 49 (C.A.); R. c. Vermette, [1984] C.A. 466; (1984), 16 C.C.C. (3d) 532 (Que.); R. v. Pickersgill et al., Ex parte Smith et al. (1970), 14 D.L.R. (3d) 717 (Man. Q.B.).
DÉCISIONS CITÉES:
Anderson v. Minister of Employment and Immigration, [1981] 2 F.C. 30; (1980), 113 D.L.R. (3d) 243 (C.A.); Muliadi v. Canada (Minister of Employment and Immi gration), [1986] 2 F.C. 205 (C.A.); Fulay v. Minister of Employment and Immigration, T-152-83, Jerome A.C.J., order dated 19/4/84, F.C.T.D., not reported; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 14 C.R.R. 13: Valente v. The Queen et al., [1985] 2 S.C.R. 673; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; The Judges v. Attorney-General for Saskatchewan (1937), 53 T.L.R. 464 (P.C.); MacKay v. The Queen, [1980] 2 S.C.R. 370.
AUTHORS CITED
Canada, Débats de la Chambre des communes, vol. 129,
n° 236, 2° Sess., 33° Lég. 18 janvier 1988, la p. 12001. Canada, Débats de la Chambre des communes, vol. 129,
n° 237, 2e Sess., 33° Lég. 19 janvier 1988, aux p. 12055,
12057.
Canada, Débats de la Chambre des communes, vol. 129,
n° 238, 2° Sess., 33° Lég. 20 janvier 1988, la p. 12095.
Canada, House of Commons Debates, Vol. 129, No. 236 2nd Sess., 33rd Parl. January 18, 1988, at p. 12001.
Canada, House of Commons Debates, Vol. 129, No. 237, 2nd Sess., 33rd Parl. January 19, 1988, at pp. 12055, 12057.
Canada, House of Commons Debates, Vol. 129, No. 238, 2nd Sess., 33rd Parl. January 20, 1988, at p. 12095.
COUNSEL:
Marlys Edwardh, Barbara Jackman and Lorne Waldman for applicant.
David Sgayias and Michael Duffy for respondents.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: The applicant seeks orders of certiorari and prohibition quashing the subsection 27(1) report on him [Immigration Act, 1976, S.C. 1976-77, c. 52] and the direction for inquiry under subsection 27(3) and prohibiting the adjudicator from proceeding to hear his case.
The applicant entered the country with his family on February 25, 1987 pursuant to visas issued them in Spain. At time of entry they were granted permanent resident status.
On December 21, 1987 the applicant spoke on the telephone with Mr. C. Fiamelli, an immigra tion officer, who requested that he come in for an interview regarding his background, his previous activities and a problem that had arisen. The interview took place December 29, 1987. At the interview Mr. Fiamelli showed the applicant three files and some photographs. The applicant under stood from these that the Immigration Department now knew he had been convicted in Greece in 1968 of offences relating to the attack on an Israeli El Al Airliner in which one person was killed.
Mr. Fiamelli offered the applicant two options. One was to leave the country voluntarily, in which case no enforcement proceedings would be taken. His family would be permitted to stay in Canada and he could visit them if he obtained a Minister's permit. Mr. Fiamelli suggested that the applicant would be given until the end of January to leave voluntarily.
The second option, if he did not leave voluntari ly, was a deportation inquiry. If an order was made as a result, his family would be affected as well. The applicant was informed of the three grounds on which an inquiry would be held. Mr. Fiamelli wrote down the relevant section numbers and gave them to him.
At the end of the interview the applicant indicated he wished to speak with his lawyer. He met with his solicitor, Mr. Brian Pennell, on December 31, 1987 and told him everything Mr. Fiamelli had said. Mr. Pennell contacted Mr. Fia- melli and arranged a meeting for January 15, 1988, which the lawyer later had to postpone. Several telephone calls between Mr. Pennell and Mr. Fiamelli followed.
On January 20, 1988 the applicant met with his lawyer and Mr. Fiamelli and was served with a notice of inquiry. The applicant expressed surprise at this because he had understood he would have until the end of January before an inquiry was instituted.
The inquiry commenced on January 25, 1988. Before it began Mr. Fiamelli told the applicant, in response to his question, why an inquiry was being held, that the government had ordered it because of pressure resulting from the media.
The applicant claims he was not aware or informed by Mr. Fiamelli that he could make representations to the Governor in Council or the Minister to show that he had been rehabilitated since his crime, that it would not be detrimental to the national interest to allow him to remain in Canada or that an inquiry should not be held for humanitarian and compassionate reasons. Counsel for the applicant conceded, however, that the interview Mr. Fiamelli had with the applicant was quite proper. The criticism is that the officer did not do enough because he did not go on to elabo rate, not only on the applicant's options, but also as to how he might pursue them.
The further facts relied on by the applicant are that on January 18, 19 and 20, 1988 three Minis ters of the Crown, the Solicitor General, the Min ister of Employment and Immigration and the Minister of State for Immigration, made a series of statements in the House of Commons and else where concerning the applicant's case. The Han- sard transcript for those days was submitted in evidence and reveals that the Ministers stated, among other things, that the applicant had given false information in order to get into Canada, that he was a convicted terrorist and that the govern ment's primary objective was to get this man out of the country.
The statutory provisions relevant to this applica tion are sections 19(1)(c) and (e), 27(1)(a) and (e) and 27(3) of the Immigration Act, 1976:
19. (1) No person shall be granted admission if he is a member of any of the following classes:
(c) persons who have been convicted of an offence that, if committed in Canada, constitutes or, if committed outside Canada, would constitute an offence that may be punishable under any Act of Parliament and for which a maximum term of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council that they have rehabilitated themselves and that at least five years have elapsed since the termination of the sentence imposed for the offence;
(e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subver sion against democratic government, institutions or pro cesses, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;
27. (1) Where an immigration officer or peace officer has in his possession information indicating that a permanent resident is a person who
(a) if he were an immigrant, would not be granted landing by reason of his being a member of an inadmissible class described in paragraph 19(1)(c), (d), (e) or (g) or in para graph 19(2)(a) due to his having been convicted of an offence before he was granted landing,
(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document per taining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person, or
he shall forward a written report to the Deputy Minister setting out the details of such information.
(3) Subject to any order or direction of the Minister, the Deputy Minister shall, on receiving a report pursuant to subsec tion (I) or (2), and where he considers that an inquiry is warranted, forward a copy of that report and a direction that an inquiry be held to a senior immigration officer.
The applicant's arguments with respect to these provisions are divided into three major compo nents, one of which was dealt with by each of his three counsel. These are: certiorari, prohibition and remedies.
I: Certiorari
The applicant attacks each of the subsection 27(1) report and the subsection 27(3) inquiry direction on the grounds of jurisdiction and fairness.
A: Subsection 27(1) report
The report is based on three grounds. The appli cant is alleged to be described in paragraphs 27(1)(a) and 27(1)(e) because
1. he is a person who, if he were an immigrant, would not be granted landing by reason of his being a member of an inadmissible class described in paragraph 19(1)(c) as he has been convicted of an offence before he was granted landing;
2. he is a person who, if he were an immigrant, would not be granted landing because he is described in paragraph 19(1)(e), namely a person who has engaged in acts of espionage or subversion against democratic government, institutions or processes and
3. he is described in paragraph 27(1)(e) because he is a person who was granted landing by reason of misrepresentation of a material fact.
The facts given in the report to support these grounds are: that the applicant was convicted on March 26, 1970 at Athens, Greece of offences equivalent to those under sections 217, 83(1)(a) [as am. by S.C. 1976-77, c. 53, s. 3] and 76.2(b) [as added by S.C. 1972, c. 13, s. 6] of the Canadi- an Criminal Code [R.S.C. 1970, c. C-34] which carry maximum sentences of over 10 years; that he has committed a terrorist act and is a member of the Popular Front for the Liberation of Palestine which is dedicated to the overthrow of the Israeli government; and that he was granted landing by misrepresentation in that he stated on his applica tion he had never been convicted of a criminal offence.
It should be noted first that the applicant does not dispute the third ground for the report: mis representation. As a result, his request to quash the entire report cannot be granted as that ground alone is sufficient to sustain it. He does oppose the other two grounds. If they were removed from the report they could not be considered by the inquiry adjudicator: Anderson v. Minister of Employment and Immigration, [1981] 2 F.C. 30; (1980), 113
D.L.R. (3d) 243 (C.A.). It is therefore worthwhile to consider his arguments on those two points.
The basic jurisdictional argument with respect to both paragraph 27(1)(a) grounds is that the officer signing the report did not, as required by the paragraph, have in her possession information with respect to all the elements of pararaphs 19(1)(c) and (e). Specifically, she did not know whether the applicant had satisfied the Governor in Council that he had rehabilitated himself and that at least five years had elapsed since his sen tence terminated or whether he had satisfied the Minister that his admission would not be detri mental to the national interest.
It is not alleged that the applicant had satisfied the Governor in Council or the Minister as to these facts. It is also not disputed that the immigration officer knew he had not so satisfied those officials. What is submitted is that, before a report could be written, the officer had to know that the applicant had been given the opportunity to satisfy them and had been unsuccessful. It is alleged that the report's author could not possibly have had that knowledge as the applicant was not given that opportunity. I do not accept that argument. For the reasons which follow, I do not believe the applicant was entitled to any further opportunity to make submissions beyond what he was given. The immigration officer was therefore within her jurisdiction in making the report.
The second ground for attack on the report is that the applicant was not treated fairly. The applicant has submitted case law to establish that a person applying to enter Canada who has had a conviction must be given an opportunity to show he has been rehabilitated. (There is no similar jurisprudence with respect to paragraph 19(1)(e) but applicant submits the same principles would apply by analogy.) The cases which deal directly with this point are decisions of the Immigration Appeal Board: Simpson v. Canada (Minister of Employment & Immigration) (1987), 3 Imm. L.R. (2d) 20, dated July 16, 1987 and Tsang v. Canada
(Minister of Employment & Immigration), dated January 7, 1988 [not yet reported].
In the Simpson decision the Board held that the principles of administrative fairness outlined in Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.) required that the applicant be made aware of the fact that he had to satisfy the Minister as to his rehabilita tion and that he be given the opportunity to do so. Two facts should be noted about that case: first, the applicant had been convicted of a very minor offence and there is no indication he attempted to conceal it. Second, the respondent conceded that there were sufficient humanitarian or compassion ate grounds to allow the appeal.
In the Tsang case the Simpson decision was applied to an applicant who had apparently initial ly lied about his conviction but was found out before landing was granted. It was a more major offence. Again, the lack of opportunity to satisfy the Governor in Council rendered the landing refusal invalid.
The fact that this applicant had actually been granted landing before this issue came up is an important distinction from the two Immigration Appeal Board cases. Counsel could provide no instances where the Simpson principle has been applied to persons who attained landing by mis representing their criminal record.
Counsel also maintains that Commission prac tice, as outlined in the Immigration Manual, is to give an opportunity to show rehabilitation. The affidavit evidence of an immigration practitioner was that people illegally in Canada are also given an opportunity to prove rehabilitation. By the prin ciples in Fulay v. Minister of Employment and Immigration not reported, April 19, 1984, Court No. T-152-83, it was argued that this applicant should have been treated equally with others in the same position.
There are several reasons this argument should not succeed. First, it is not clear that the words of the statute will support the generous interpretation given them by the Immigration Appeal Board. The phrase "have satisfied the Governor in Council (or Minister)" is clearly in the past tense and seems to provide an exemption for people who have already taken steps to show their rehabilitation.
Second, adequate information and opportunity to make submissions were provided in this case. Following his first interview with Mr. Fiamelli, the applicant knew all the concerns the Immigration Department had with respect to his background, knew the specific incidents which had caused those concerns, knew the grounds on which an inquiry would proceed if necessary and knew which sec tions of the Act were being applied. He expressed the intention of discussing all of this with his legal representative, which he did, and Mr. Pennell then had the opportunity to discuss the matter with Mr. Fiamelli, which he did. Two further telephone conversations between Mr. Pennell and Mr. Fia- melli conveyed the information that the matter was becoming more urgent and that some deci sions would have to be made soon. Those occasions offered other opportunities to forestall a report and inquiry by providing more information. There was no requirement, in the circumstances of this case, for Mr. Fiamelli to do anything further before a report could be prepared on Mr. Mohammad.
I also consider it significant that it is still open to the applicant, as the respondent points out, to attempt to satisfy the Minister and Governor in Council. Counsel for the applicant questioned whether even a proper determination of those issues by the appropriate Ministers would be ad missible in evidence before either the adjudicator or the Immigration Appeal Board after the subsec tion 27(1) report has been written and upheld. I do not have the same concern. Under subsection 32(2) the adjudicator must determine whether a permanent resident is a person described in subsec tion 27(1). That necessarily involves a determina tion of whether the Minister and Governor in Council have been satisfied as to his rehabilitation or admissibility in the national interest. Similarly, on an appeal to the Immigration Appeal Board
under subsection 72(1) the Board must consider whether, having regard to all the circumstances of the case, the person should be removed from Canada (paragraph 72(1)(b)). The satisfaction of the Minister as to his rehabilitation or admissibili ty would surely be a most relevant factor in making that decision. Indeed, at the close of the hearing, counsel for the applicant urged that, in the event I find that the inquiry should proceed, I order the Minister to consider the questions raised by paragraphs 19(1)(c) and (e) before the inquiry resumes. Clearly then, completion of the subsec tion 27 (1) report has not forestalled the applicant's ability to establish his rehabilitation or admissibili ty in the national interest.
In my opinion, therefore, neither of the grounds for striking out the subsection 27(1) report have been made out.
B: Subsection 27(3) Inquiry Direction
This document is also attacked on the grounds of jurisdiction and fairness. On the first ground, it is argued that the Deputy Minister or other offi cial who orders an inquiry to be held must ensure that a prima facie case against the applicant exists. The argument is that since the subsection 27(1) report was deficient, a prima facie case could not have been shown here. In light of the finding of validity of the subsection 27(1) report, this argument must fail.
On the fairness issue, the applicant begins by seeking to distinguish Kindler v. MacDonald, [1987] 3 F.C. 34 (C.A.). In that case it was held that the decision to order an inquiry under subsec tion 27(3) is a purely administrative one. All the Deputy Minister had to decide was whether an inquiry is warranted, which he can do on the existence of a prima facie case. The duty of fair ness in such a decision was found to be minimal. MacGuigan J. continued as follows at pages 40-41:
What I find most important in this respect is that the decisions involved are merely decisions with respect to the respondent, not against him. In fact, they might be said to be
for him, since he is not only to have a hearing but by subsection 30(1) of the Act has the right to be represented by counsel. In other words, it is not a decision to deprive the respondent of his life, liberty, security of the person or even of his property, and so does not fall under the principle that there is "a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interest of an individual", affirmed by the Supreme Court in Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 653 (emphasis added).
In fact, it would to my mind be ludicrous to require even a paper hearing in such circumstances with respect to the deci sion to grant a hearing. If that were the law, why would there not be a still earlier hearing with respect to that decision to hold a hearing, and so on in infinite regression? Provided that the official decisions made are taken in good faith, I cannot see how they can be lacking in fairness, and the Trial Judge has found as a fact that there is no evidence of bad faith.
The applicant seeks to distinguish this case on its facts. Mr. Kindler, it is said, was illegally in the country, having fled here to escape arrest in the U.S. The case therefore applies only to people without status in Canada who have no rights to be deprived of. Because of the decision in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 14 C.R.R. 13, the applicant submits the position of a permanent resident is very different. He has the right to fair treatment under the Charter [Canadian Charter of Rights and Freedoms, being part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)], the right to remain in Canada and to choose where he will travel and the right to seek citizenship. He will be deprived of all of this on the making of a deportation order.
That argument fails in this case because the decision here is to order an inquiry, not deporta tion. However, the applicant also maintains that even the decision to hold an inquiry will adversely affect his rights. Once the subsection 27(3) direc tive is issued, he will be subject to detention or, as is already his case, to release on certain restrictive conditions. There is also the argument that he and his family will be under stress, possibly for years, while his case winds its way through the hearing
and appeal process. The applicant's counsel there fore concludes that he should have been given an opportunity to make submissions as to why an inquiry was not warranted before the directive issued.
The applicant has overstated the consequences of the initiation of the inquiry process. As Mac- Guigan J. points out in Kindler this is merely a decision to hold a hearing, not to deprive him of his rights to life, liberty or security of the person. The consequences which do flow from the inquiry directive, the duty to report and appear for his hearing, are entirely proportionate to the purpose for which they were instituted—i.e. ensuring he attends.
The submission on behalf of the applicant also understates his rights, which remain his through out this process. As a landed immigrant he has the right to appeal any removal order made against him to the Immigration Appeal Board (subsection 72(1)). He also has the right to suspend the inqui ry at any time by filing a claim to be a Convention refugee. He has the right to have that claim determined by the Refugee Status Advisory Com mittee and then to have it redetermined by the Immigration Appeal Board (subsection 70(1)). Throughout the inquiry process the applicant will retain these important substantive and procedural rights.
I am not persuaded that the Kindler decision has been successfully distinguished. The Court of Appeal finding as to the nature and requirements of a subsection 27(3) decision had nothing to do with the status of the individual before them. I see no reason why the judgment should not apply with equal force to a landed immigrant who, as we have seen, retains considerable rights after the decision is made. Even if I disagreed with that decision, and I do not, I would be bound by it. On the contrary, I find the reasoning of the Court of Appeal entire ly appropriate to this situation. Fairness does not require that this applicant be involved in the delib-
erations or decision under subsection 27(3) which lead only to the conduct of an inquiry.
The second argument on the fairness issue is that the decision to hold an inquiry was taken for an improper motive. It is argued that the official responsible for that decision was affected by the statements of the Ministers in the House and by media coverage of the case. Evidence of this is found in Mr. Fiamelli's statement to the claimant. The cases of Roncarelli v. Duplessis, [1959] S.C.R. 122 and Re Multi-Malls Inc. et al. and Minister of Transportation and Communications et al. (1976), 14 O.R. (2d) 49 (C.A.) are cited for the proposition that a discretionary power is not to be exercised for an improper purpose or on the basis of collateral or extraneous considerations. In both those cases, I note that the grievance was that executive action was taken without affording the aggrieved party the proper opportunity to make representations. In Multi-Malls a decision about the development of property was allegedly taken for political motives. Roncarelli v. Duplessis, of course, was the very famous case of the tavern licence which was suspended because of the reli gious affiliation of the owner. It was the denial of a proper hearing in both cases which led to the Court's decision.
The situation in the case before us is exactly the reverse. The decision at issue here is to afford the applicant the opportunity to appear at an adjudicative process, represented by counsel, and make his case for being allowed to stay in Canada. That process will unfold as it does with every immigrant in a similar situation. The most that has happened in this case is that during the period between late December and late January, the matter attracted great public attention. As a result, the Ministers involved and the representa tives of the respondent Department indicated a desire to push the applicant's case along. Had there been a statement of intent to deport without due process the matter would resemble the bias cases put forward by the applicant. But that is not what happened. What was indicated by the respondents' representatives was that, because of
the high profile of the case, the process would have to move forward and the applicant would therefore have to accelerate his choice as to whether he wished to leave the country voluntarily or stay and submit to the same process as others in his posi tion. The applicant delayed and the inquiry was ordered. It is clear from the record that valid immigration considerations were what led to that decision, and I do not find that the inquiry direc tive was issued for an improper purpose.
For these reasons, the application to quash the subsection 27(1) report and the subsection 27(3) directive must fail.
II: Prohibition
The applicant asks that an order issue prohibit ing the deportation inquiry from proceeding. He submits that the inquiry will infringe his rights under section 7 of the Charter for two reasons: first, the adjudication process has been tainted with bias because of the Ministers' comments which indicate that a decision regarding his case has already been made. Second, the inquiry would infringe his right to be heard by an independent and impartial tribunal because of the position of the adjudicator within the Department of Employ ment and Immigration.
Some argument was addressed as to whether these concerns are relevant to the proceedings at issue here. I am prepared to accept that this inquiry, at least potentially, may affect the liberty and security rights of the applicant. I am also prepared to accept that the role of the adjudicator is a judicial or quasi-judicial one. It is therefore apparent that the inquiry proceedings are subject, to an appropriate degree, to the rules of natural justice. Those rules include the requirement that a hearing be conducted by an impartial and independent tribunal.
The applicant alleges that the adjudicator in this case is neither. First, he claims that the Ministers' statements prejudged his case and put pressure on the adjudicator to decide in the same way. This, it is alleged, introduced bias into the adjudication process.
The test for fatal bias was set out in Valente v. The Queen et al., [1985] 2 S.C.R. 673, at page 684, citing de Grandpré J. in Committee for Jus tice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at page 394, as follows:
... what would an informed person, viewing the matter realisti cally and practically—and having thought the matter through—conclude ....
In this case, it is submitted that the remarks of the Minister of Employment and Immigration, the Minister of State for Immigration and the Solici tor General direct the adjudicator as to the order he must make. The comments in question are the following:
Hon. Gerry Weiner (Minister of State (Immigration)) [January 20, 1988] .... Our primary objective is to get this man out of the country. He either leaves because of the threat of deportation or because of a deportation order issued under due process. [Emphasis added.]
Hon. James Kelleher [January 18, 1988]:... the gentleman is in Canada because he gave false and misleading evidence to our liaison officer in Spain. [Emphasis added.]
Hon. Benoit Bouchard [January 18, 1988]: Mr. Speaker, the same false information given to the security agency in Spain was used to gain access to Canada. [Emphasis added.]
Hon. Gerry Weiner [January 19, 19881: Mr. Speaker, Canada cannot and will not become a safe haven for terrorists.
... Our intent is to apply the full force of the law to ensure the expulsion of this individual from Canada. Terrorists will not be allowed to remain in this country. [Emphasis added.]
Hon. Gerry Weiner [January 20, 1988]: The man is here illegally as a convicted terrorist. Our primary objective is to get this man out of the country. [Emphasis added.] *
It is alleged that these remarks constitute pre judgment of the very issues to be decided by the adjudicator and that they would lead an informed person, viewing the matter practically and realisti cally, to conclude there was a reasonable appre hension of bias.
The applicant cites, in support of this proposi tion, the decision in R. c. Vermette, [ 1984] C.A.
* Editor's Note: Excerpts cited from the House of Com mons Debates, Vol. 129, Nos. 236, 237, 238, 2nd Sess., 33rd Parl. January 18, 19, 20, 1988, at pp. 12001, 12055 and 12095 respectively.
466; (1984), 16 C.C.C. (3d) 532 (Que.). In that case an RCMP officer had been charged with burglary in connection with an investigation of the Parti Québécois. Some of the evidence given at the trial prompted a question for the Premier in the National Assembly. The Premier responded at some length, using colourful language, and cast aspersions on the accused, his witness and mem bers of the federal government. His remarks were given wide publicity and caused the Trial Judge to declare a mistrial. An application was brought for an indefinite stay of proceedings under subsection 24(1) of the Charter which was granted and upheld on appeal. The Court of Appeal held that the accused could not be given a fair trial by an impartial jury in light of the fact that he had already been tried and convicted publicly by the head of government.
The applicant maintains that the Vermette case is analogous to the one at bar. There are, however, several distinguishing features. First, Vermette was charged with a criminal offence, so the full panoply of procedural rights under section 11 of the Charter came into play, rather than the less defined "principles of fundamental justice" under section 7. Second, the concern was not with direc tion by the head of an institution in which the adjudicator was employed, but with a public find ing of guilt on the part of the head of government, from which the majority of the Court did not believe a jury could free itself. Third, the Premier apparently did not in any way qualify his remarks by upholding the necessity of a proper judicial proceeding.
There are several reasons why the comments by the Ministers here should be seen in a different light from those of the Premier in Vermette. First, unlike the Premier, the Minister of Employment and Immigration is required, under the scheme of the Act, to take a position with regard to each applicant for admission and each immigrant inves tigated as being here illegally. He has a dual responsibility in these cases: he must be fair to the applicant or immigrant, but he also has the obliga tion to uphold the laws of Canada and the policies of Parliament. His involvement in the adjudication
process is to ensure that fairness is extended to the people of Canada as well as to the applicant.
This dual role is not unique among ministerial responsibilities. I consider, for example, the situa tion of the Minister of Health and Welfare who has the responsibility for bringing patented medi cines onto the market. He also has the duty to protect the Canadian consumer from impure or hazardous products.
In the immigration process, the Minister's posi tion is never a secret. In every one of the thousands of these cases which are brought every year, the Minister instructs a case presenting officer, whose job it is to put before the adjudicator, in a public hearing, the Department's theory of the case. That position must always be determined before the case is heard. I do not see that the process becomes an improper one just because the Minister has stated that position publicly.
Second, it is important that the comments com plained of here be placed in context. In addition to the comments cited above, other portions of the Hansard transcript were also quoted to me which indicated that due process had been and would be applied with respect to the applicant and that all necessary legal procedures would be followed. For example, on January 19, 1988 the Solicitor Gener al indicated [at page 12057]:
Heinous as the crime is, and as much as we would like to get rid of this gentleman as quickly as possible, the due process of the law must be followed. We must have a sustainable case.
In situations where bias is allegedly revealed in a public address, it has been held that the address must be considered as a whole, not minutely exam ined. The test is whether prejudice is betrayed in the speaker's words when they are considered as an integrated whole. (R. v. Pickersgill et al., Ex parte Smith et al. (1970), 14 D.L.R. (3d) 717 (Man. Q.B.), at page 728.) When taken as a whole, the Ministers' comments in this case appear to me to state a position with respect to a matter which must still go through a legal process, not a
conclusion as to what the outcome of that process should be.
More importantly, as distinguished from the Pickersgill case, here the "speaker" is not the decision-maker. Normally where bias is alleged to flow from a controversial speech, the person deliv ering it is the one who must make the decision. At this stage of the inquiry process, the Ministers do not determine the applicant's fate. The decision is made by the adjudicator.
A decision raised by the respondent, Van Rassel v. Canada (Superintendant of the RCMP), [1987] 1 F.C. 473 (T.D.), dealt with precisely this situa tion. In that case a member of the RCMP was before a service tribunal on charges under section 25 of the Royal Canadian Mounted Police Act [R.S.C. 1970 c. R-9]. While his case was pending, the Commissioner commented publicly in a critical manner on the activities of the charged member. It was argued that, as the Commissioner had appointed the members of the tribunal, his com ments resulted in a reasonable apprehension of bias on the part of the tribunal. Joyal J. of this Court found as follows at page 487:
Assuming for the moment that the document is authentic and that the words were directed to the applicant, it would not on that basis constitute the kind of ground to justify my intervention at this time. The Commissioner of the RCM Police is not the tribunal. It is true that he has appointed the tribunal but once appointed, the tribunal is as independent and as seemingly impartial as any tribunal dealing with a service- related offence. One cannot reasonably conclude that the bias of the Commissioner, if bias there is, is the bias of the tribunal and that as a result the applicant would not get a fair trial.
Here, as well, there is no reason to conclude that the prejudices of the Ministers (if any) are those of the adjudicator.
It would have been better, of course, if the remarks of the Ministers had been more temperate in nature. However, that fact alone will not serve to taint the entire adjudicative process. This ques tion was canvassed in Caccamo v. Minister of Manpower and Immigration, [1978] 1 F.C. 366; (1977), 16 N.R. 405 (C.A.). In that case the Director of Information for the Department of Manpower and Immigration had made some public comments outlining the Department's posi-
tion on the applicant's case. The applicant attempted to argue, as here, that all adjudicative officers employed by the Department were dis qualified from hearing his case because they were subject to bias flowing from those comments. The Trial Judge [[1977] 2 F.C. 438] found no reason able apprehension of bias. The Court of Appeal noted that acceptance of the applicant's argument would mean that no person having the authority to conduct the inquiry would be free from disqualifi cation. The Court held that even in cases of actual bias, in the sense of monetary interest, if all eli gible adjudicating officers are subject to the same potential disqualification, the law must be carried out notwithstanding. Jackett C.J. cited [at page 373] the case of The Judges v. Attorney-General for Saskatchewan (1937), 53 T.L.R. 464 (P.C.) where the question involved was one affecting the liability of Saskatchewan judges to pay income tax. For the Privy Council, Sir Sidney Rowlatt said, at page 465:
The reference in question placed the Court in an embarrass ing position, all its members being from the nature of the case personally interested in the point in controversy. They took the view (quite rightly in their Lordships' opinion) that they were bound to act ex necessitate.
Jackett C.J. continued at pages 373-374 F.C.; 412 N.R..
If this is the rule to be applied where actual bias is involved, as it seems to me, it must also be the rule where there is no actual case of bias but only a "probability" or reasonable suspicion arising from the impact of unfortunate statements on the public mind. I, therefore, formed the view, that, even assuming all the other factors in favour of the appellant, because it is necessary to carry out the legal requirements of the statute, a Special Inquiry Officer is not disqualified from acting by reason only of the circumstances established in this case.
On that basis, the appeal was dismissed. The Court went on, by way of obiter to say that no reasonable suspicion of bias had been shown. Jack- ett C.J. said at pages 374-375 F.C.; 413 N.R.:
The doctrine would only come into play where the facts are such as to create such idea of probability or reasonable suspi cion in the minds of persons who understand the principle of independence from the executive upon which our judicial system is based. So, as it seems to me, assuming that the doctrine applies to Special Inquiry Officers, it would not come into play where the facts are such as not to create a probability or suspicion if it were not for the fact that the investigative officers of the Immigration Branch and the Special Inquiry Officers who have the function of determining the facts for the
purpose of making deportation orders are by law under the general direction of the same Minister. To any person who does understand that apparently anomalous state of affairs, the situation, and the only situation, that has been established in this case, as I understand it, is that the Department, on its investigative side, has taken a position or view, that has resulted in the appellant's case being made the subject of an inquiry by a hearing officer who has a legal duty to decide for himself on the evidence that comes out before him whether the appellant is, under the statute, subject to deportation. In my view, no person having any general knowledge of this particular deci- sion-making process and how it works would think that it was probable, or be reasonably suspicious, that a Special Inquiry Officer would be deflected from his statutory duty by such a background to his inquiry.
This language could apply almost directly to the case before me. Again, I am bound to follow the decision of the Court of Appeal.
The applicant also made a very strong argument that the adjudicator's position in this case is taint ed by institutional bias. It was argued that any lack of impartiality resulting from the Minister's comments is made worse by the lack of indepen dence enjoyed by adjudicators under the Immigra tion Act, 1976. The applicant made extensive sub missions as to the structure and practice of the Adjudication Directorate of the Department of Employment and Immigration. The major features are as follows:
I. Both the Adjudicators and the Case Presenting Officers, who are part of the Enforcement Branch, are under the direc tion of the same Associate Deputy Minister. Neither of the other two tribunals established under the Act are in such a subordinate position.
2. The same Legal Services Branch of the Department gives advice to both the Adjudicators and the Case Presenting Unit.
3. The Director of Adjudication formulates policies interpret ing the legislation and jurisprudence to which Adjudicators are encouraged to refer in formulating their decisions.
4. The Adjudicator's decisions and proceedings are monitored by the Director of Adjudication to pinpoint inconsistencies in the application of the law and training needs and to ensure inquiries are conducted fairly, efficiently and consistently.
5. Adjudicators are ordinary public servants with no unusual tenure or oath of office.
6. Adjudicators may be given acting assignments as Immigra tion Appeal Officers who represent the Minister before the Immigration Appeal Board. Case Presenting Officers may be given acting assignments as Adjudicators.
This regime clearly does not provide for a tri bunal which enjoys the same degree of indepen dence as a court or even as the Immigration Appeal Board. Nor do I think it must. Having reviewed the legislation and the job description provided by the applicant and bearing in mind the function and position of the adjudicator in the immigration system, in my opinion the adjudica tors should fall somewhere between the other employees of the Department and the members of the Immigration Appeal Board in terms of in dependence. Appeal Board members are appointed by the Governor in Council for fixed terms which vary in length and are subject to re-appointment. They hold office during good behaviour for a term not exceeding ten years and may be removed for cause. Their remuneration is fixed by the Gover nor in Council (Immigration Act, 1976, sections 59-61). Clearly, this is a lesser degree of indepen dence than that enjoyed by a court. It has obvious ly been considered appropriate, however, given that an appeal lies from the Board to the Federal Court of Appeal. Similarly, an adjudicator's deci sion may be appealed to the Board. It is therefore acceptable that, at the stage of the adjudicator's decision, the tribunal be somewhat less indepen dent. The adjudicative system under the Immigra tion Act, 1976 provides for an initial decision by a person within the Department who has been trained in the relevant subject areas and an appeal to a more independent tribunal. This combination of expertise and right of appeal was held in MacKay v. the Queen, [1980] 2 S.C.R. 370 to fully satisfy the requirements of independent and impartial decision-making (see the reasons of McIntyre J. at pages 404-405). The important requirement is that the adjudicator be free from real or apparent interference in his decision making in each individual case. (Valente, supra at page 687.) I am satisfied, on the basis of the evidence filed, that this standard has been met.
The applicant submitted the affidavit of a former adjudicator, one Stuart Scott. While sup porting some of the contentions summarized above, he also swore to the following facts, on the basis of his experience:
1. Assignment of adjudicators to cases was normally rationally based. Most areas, including Hamilton (where this case will be heard) only have one adjudicator to hear all cases so no assignment is necessary (paragraph 13).
It follows from that, of course, that the Minister is not in a position to change the adjudicator who will deal with this case, even if he wanted to.
2. He always felt as an adjudicator that the final decision on a case was solely his and that he did not have to take direction on substantive matters of law from his superior officers (para- graph 14).
3. Adjudicators (who need not be legally trained) were provided with training and infor mation on the current state of immigration law by Adjudication Directorate Staff. Opinions were issued to promote consistency in decision- making across Canada which adjudicators were encouraged, but not instructed, to apply (para- graph 15).
4. Legal opinions were not only given by the Commission's Legal Services Branch. There were also lawyers on the staff of the Adjudica tion Directorate who provided advice to adjudicators (paragraph 16).
5. The monitoring of hearings complained of by the applicant was primarily focused on how the hearings were conducted (paragraph 19).
6. He never felt he had to make a decision consistent with a view taken by supervisory offi cials. He did experience some pressure to con form to a particular norm of decision making on particular substantive issues (paragraph 20).
I must conclude from this evidence that, had the affiant been assigned this case as an adjudicator, he would have been able to hear it fairly and independently. There is no evidence that other adjudicators would be in a different position. In particular, there is no evidence that a Minister could or would direct or ever has directed an
adjudicator to decide in a particular way or that the adjudicator would be expected to follow that direction if it were given.
That conclusion leads me to find that there is a necessary measure of separation between the adjudicators and the Minister and Department in the regime under which they are appointed and carry out their responsibilities. Because of that independence, it follows that the result to be achieved before the adjudicator in Hamilton would not be affected or influenced by the Minister's comments complained of, particularly when they are placed in context and in the light of the Minister's responsibility to take a position before the adjudicator.
III: Remedies
It was argued that, while the remedies sought here are usually considered discretionary, if I found an error of jurisdiction in either the issuance of the subsection 27(1) report or the subsection 27(3) directive, certiorari and prohibition should issue as of right. I am not sure I would accept that argument, even if I had found an error of jurisdic tion, which I have not. The prerogative writs remain discretionary remedies and there are sever al factors which militate against issuing them in this case.
I said several times during the course of argu ment that the applicant, like any other applicant for admission to Canada, is the one in control of the character of the relationship between himself and the Department. He alone is the one who has all of the information relevant to the possibility of re-establishing himself here in Canada. The deci sion to withhold it or to make full disclosure, to be forthright and honest or to hold back is one that agonizes every applicant. Indeed, it is not uncom mon that people decide to do, to some degree, what the applicant did here. However, I think it unfair to suggest that Canada and the immigration pro cess and the representatives of the respondent Department must then accept full responsibility for the consequences which flow from that decision and that the applicant must accept none of it. That is essentially the thesis which is put forward on his behalf.
The applicant had the opportunity to communi cate with Canadian immigration officials in Spain. He did so, deciding how much information he would release and how much he would withhold. He had a second opportunity when he came to Canada and he exercised his discretion in the same way. For several months he was in Canada with landed immigrant status. One might have thought that with the intention of establishing himself and his family here for the long term, it would have been appropriate for him to initiate full disclosure, rather than wait for a Department investigation. It probably would have been beneficial to all con cerned, but it did not happen.
What did happen, finally, was that he was invit ed to an interview with Mr. Fiamelli who more than adequately and fairly explained all of the considerations which were in play—all of the legis lative provisions and all of the relevant informa tion, including the major concerns in the appli cant's case. They were all very legitimate immigration concerns. Mr. Mohammad was given the opportunity to consult counsel, and several conversations took place between his representa tive and Mr. Fiamelli. The applicant failed to seek access to the Minister as provided in paragraphs 19(1)(c) and (e) partly, I am sure, because he never did disclose the information which might form the basis for such a request. He must accept responsibility for that decision.
The high profile nature of the case does not change these considerations. It is a result of the seriousness of the crime involved, the way the applicant got into Canada and the failure to make full disclosure during any of the available oppor tunities. It is hardly surprising that the case would hit the headlines and cause a stir in the House of Commons. It is also not surprising that those factors placed pressure on the respondents' repre sentatives to proceed with dispatch to have this case adjudicated. I have said that I find nothing irregular about that situation.
As for the Ministers' comments in the House, while I have said they might have been more temperate, nevertheless I do not conclude that, in their proper context, they had the effect of
destroying the objectivity of the adjudication process.
As a result, therefore, the application for certio- rari and prohibition must be dismissed.
At the close of the hearing, applicant's counsel asked for an order that the adjudication process be suspended until the applicant is given an opportu nity to satisfy the Minister as to his rehabilitation and admissibility in the national interest. That was not part of the relief sought initially and it was never argued. I am not even sure I have the jurisdiction to make such an order. However, while I do not propose to entertain representations on this point, I can certainly express the hope that every accommodation be made for the applicant to make an early representation to the Minister. In light of the Immigration Appeal Board's decisions in Simpson and Tsang, supra, it seems very impor tant that the applicant be given that opportunity.
This application, however, must be dismissed with costs.
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