A-1026-90
Pacific Press Limited and Neil Graham (Appli-
cants)
v.
Minister of Employment and Immigration, R. G.
Smith, in his capacity as Adjudicator pursuant to
the Immigration Act (Canada) and Charles Julius
McVey (Respondents)
INDEXED AS: PACIFIC PRESS LTD. V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (CA.)
Court of Appeal, Mahoney, MacGuigan and
Décary JJ.A.—Vancouver, March 3; Ottawa,
April 22, 1991.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of press — Immigration Act, s. 29(3)
requiring inquiries to be held in camera unless member of
public seeking access establishing public conduct of inquiry
neither impeding inquiry nor adversely affecting subject or
family — Immigration Act inquiries analogized to judicial
proceedings — Media coverage rendering courts truly open to
public — Charter, s. 2(b) infringed as purpose of legislation to
prevent access to immigration inquiries — Impugned legisla
tion deemed valid for one year to preserve rule of law, allow
Parliament time to amend.
Constitutional law — Charter of Rights — Limitation
clause — Immigration Act, s. 29(3) (requiring inquiries held in
camera unless member of public seeking access establishing
public conduct of inquiry neither impeding inquiry nor
adversely affecting subject or family) infringing Charter, s.
2(b) freedom of press — Although objective (that refugee
claimant or family not suffer reprisals due to testimony)
sufficient to warrant overriding freedom of expression, means
not proportional to end — S. 29(3) overinclusive.
Immigration — Practice — Immigration Act, s. 29(3)
(requiring inquiries held in camera unless member of public
seeking access establishing public conduct of inquiry neither
impeding inquiry nor adversely affecting subject or family)
infringing Charter, s. 2(b) freedom of press — Analogy be
tween inquiries under Immigration Act and judicial proceed
ings — Legislation not justified under Charter, s. 1 as exces
sive — Although s. 29(3) void, deemed valid for one year to
avoid confusion in administration of refugee program and to
give Parliament time to amend — Meaning of "adversely
affected" dealt with in view of temporary validity authoriza
tion.
This was an application to set aside the Adjudicator's deci
sion that the inquiry and detention review hearings under the
Immigration Act concerning respondent, McVey, should be
held in camera because he would be adversely affected by the
stress resulting from publicity. The press was interested in the
case because McVey was wanted for the commission of
offences in California, but the British Columbia Court of
Appeal had held that the offences were not extraditable. Immi
gration Act, subsection 29(3) provides that an inquiry shall be
held in camera unless it is established to the adjudicator's
satisfaction, on application by a member of the public, that the
conduct of the inquiry in public would not impede the inquiry
and would not adversely affect the subject of the inquiry or any
member of his family. The applicants argued that subsection
29(3) was void as inconsistent with the Charter, paragraph 2(b)
guarantees of freedom of expression and of the press. The
respondents argued that the "unless" clause in subsection 29(3)
established a full and fair process containing a "built-in balanc
ing procedure" that foreclosed the need for balancing under
Charter, section 1 and that therefore did not infringe paragraph
2(b) rights. They relied on Toronto Star Newspapers Ltd. v.
Kenney wherein Martin J. refused to declare subsection 29(3)
void based on his interpretation of dicta in Pacific Press Ltd. v.
Canada (Minister of Employment and Immigration) as mean
ing that any constitutional problems with subsection 29(3) had
been resolved.
Held, the application should be allowed, although subsection
29(3) shall be deemed valid for one year to allow Parliament
time to amend the law.
The legislative history of subsection 29(3) indicates that it
was adopted to prevent access to immigration inquiries by the
press and the public except in limited circumstances, so that
Convention refugees could speak freely of their experiences
without risking reprisals by those from whom they have fled.
Martin J. misinterpreted the dicta in Pacific Press. It
expressly excluded a concluded opinion that subsection 29(3)
should be "read down". In fact, Mahoney J.A. noted two
problems: the limitation of the protected group to the refugee
claimant and his family and the placing of the onus of proof on
the person requesting an open hearing. A statute should not be
read down unless an offending clause is severable without
causing damage to the whole, or unclear language can easily be
made more clear.
The principle of public access to the courts was established
before the Charter came into being. At the present day it is
media coverage which renders courts truly open to the public.
Detention review hearings have been held to be judicial or
quasi-judicial in nature. The legitimacy of authority of tri
bunals exercising judicial or quasi-judicial functions requires
maintenance of confidence in their integrity and understanding
of their operations, which can be achieved only if their proceed
ings are open to the public. The principle of openness must be
deemed to apply to every "exercise of judicial powers" and
therefore even to that of an adjudicator under the Act. Also,
the policy considerations underlying the reluctance of our law
to inhibit the accessibility of immigration inquiries and court
proceedings are analogous. The "penetrating light of public
scrutiny" is required in respect of inquiries under the Immigra
tion Act and court proceedings equally.
The Supreme Court of Canada has held that procedure in
freedom-of-expression cases should be: (1) determine whether
the activity of the litigant falls within the protected paragraph
2(b) sphere; (2) determine whether the purpose of the
impugned government action is to restrict freedom of expres
sion. If so, the section 2 guarantee will necessarily be infringed.
Since the legislative purpose behind subsection 29(3) is to
prevent access to immigration inquiries by the press and public,
and is thus to restrict freedom of expression, subsection 29(3)
infringes freedom of expression and of the press.
As to whether the limit on freedom of expression could be
demonstrably justified in a free and democratic society under
Charter, section 1, it was necessary to distinguish between end
and means. The Government must establish that (1) the
impugned state action has an objective of pressing and substan
tial concern in a free and democratic society and (2) the means
are proportional to the end. (1) The objective of the legislation
was to ensure that neither the refugee claimant nor his family
was endangered by testimony given at the hearing. That objec
tive is of sufficient stature to warrant overriding freedom of
expression and of the press. (2) The importance of freedom of
expression and of public access to the courts is, however, of
such paramount importance that any interference with it must
be of a minimal nature. The interference herein is not of a
minimal nature. Subsection 29(3) is seriously excessive legisla
tion and should be held to be of no force or effect under
Constitution Act, 1982, subsection 52(1). It is overinclusive
because it imposes an impossible burden of proof on the
member of the public seeking to open the hearing; it does not
provide alternatives, such as a ban on publication; the combined
effect of subsections 29(2) and (3) is to give the person who is
the subject of the inquiry a "licence" to determine which
members of the public, including possibly the media, would
have exclusive access to the hearing; and, perhaps most impor
tantly, a final decision can be made on access before a refugee
claim is actually made. It would be enough to allow a tempo
rary decision to be made on access to remain in place only until
a refugee claim had been made. The legislative intention of
protecting refugee claimants cannot be defended beyond the
moment when claimants must indicate whether they are
making refugee claims.
Subsection 29(2) had not been challenged herein and accord
ingly continues in force. That, coupled with the invalidity of
subsection 29(3) may cause confusion in the administration of
the refugee program. To preserve the rule of law, Parliament
must be allowed sufficient time to amend the law. Subsection
29(3) shall be deemed temporarily valid for one year, allowing
Parliament adequate time to amend the law. In view of the
one-year temporary validity authorization, applicants' submis
sion as to the meaning of "adversely affected" in subsection
29(3) needed to be dealt with. The guidelines proposed by the
Minister should be agreed with: (1) it is insufficient to establish
embarrassment or humiliation by publication of information;
(2) privacy interest is not enough to establish adverse effect; (3)
inquiry subjects may establish adverse effect by showing that
their concerns are consistent with Charter principles; and (4)
there must be some direct link between the publicity and
personal danger to inquiry subjects or their families. Stress
generated by the presence of the news media, whatever its
effect on the health of the participants is insufficient in law to
constitute adverse effect as set out in subsection 29(3). "Lésés"
— word used in the French version of the subsection means
wronged, damaged or injured and connotes something more
than psychological adversity. The legislation contemplated
physical harm from reprisals such as imprisonment, mistreat
ment and even death. Although tension may have serious health
consequences, it could be placed no higher than the sensibilities
of the individuals involved, which are no basis for exclusion of
the public from judicial proceedings.
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.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(b), 7.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Federal Court Rules, C.R.C., c. 663, R. 341A(4) (as
added by SOR/79-57, s. 8).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 29.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27 (as am. by
R.S.C., 1985 (3rd Supp.), c. 30, s. 4), 29(3) (as am. by
R.S.C., 1985 (1st Supp.), c. 31, s. 99), 43(1) (as am.
by R.S.C., 1985 (4th Supp.), c. 28, s. 14).
CASES JUDICIALLY CONSIDERED
APPLIED:
Southam Inc. v. Canada (Minister of Employment and
Immigration), [1987] 3 F.C. 329; (1987), 13 F.T.R. 138;
3 Imm. L.R. (2d) 226 (T.D.); R. v. Keegstra, [1990] 3
S.C.R. 697; R. v. Oakes, [1986] 1 S.C.R. 103; (1986), 26
D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19
C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; Reference re
Manitoba Language Rights, [1985] 1 S.C.R. 721;
(1985), 19 D.L.R. (4th) 1; [1985] 4 W.W.R. 385; 35
Man.R. (2d) 83; 59 N.R. 321.
NOT FOLLOWED:
Toronto Star Newspapers Ltd. v. Kenney, [ 1990] 1 F.C.
425; (1990), 33 F.T.R. 194; 10 Imm. L.R. (2d) 22
(T.D.).
CONSIDERED:
Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R.
(2d) 113; 34 C.R. (3d) 27; 33 R.F.L. (2d) 279 (C.A.);
Thomson v. Canada, [1988] 3 F.C. 108; (1988), 50
D.L.R. (4th) 454; 31 Admin. L.R. 14; 84 N.R. 169
(C.A.); Attorney General of Nova Scotia et al. v. MacIn-
tyre, [1982] 1 S.C.R. 175; (1985), 49 N.S.R. (2d) 609;
132 D.L.R. (3d) 385; 96 A.P.R. 609; 65 C.C.C. (2d)
129; 26 C.R. (3d) 193; 40 N.R. 181; Edmonton Journal
v. Alberta (Attorney General), [1989] 2 S.C.R. 1326;
(1989), 103 A.R. 321; 64 D.L.R. (4th) 577; [1990] 1
W.W.R. 577; 71 Alta. L.R. (2d) 273; 45 C.R.R. 1; 102
N.R. 321; C.D. v. Canada (Minister of National Reve
nue), F.C.A., A-207-90, judgment dated 15/3/91, Décary
J.A., not yet reported.
REFERRED TO:
Re McVey, [1989] 2 W.W.R. 673; (1988), 33 B.C.L.R.
(2d) 28; 45 C.C.C. (3d) 413 (B.C.C.A.); McVey v. U.S.
(1989), 40 B.C.L.R. (2d) 273; 52 C.C.C. (3d) 34 (C.A.);
Pacific Press Ltd. v. Canada (Minister of Employment
and Immigration), [1990] 1 F.C. 419; (1990), 10 Imm.
L.R. (2d) 42; 104 N.R. 228 (C.A.); Lor-Wes Contracting
Ltd. v. The Queen, [1986] 1 F.C. 346; [1985] CTC 79;
(1985), 85 DTC 5310; 60 N.R. 321 (C.A.); Re Anti-
Inflation Act, [1976] 2 S.C.R. 373; (1976), 68 D.L.R.
(3d) 452; 9 N.R. 541; Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177;
(1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14
C.R.R. 13; 58 N.R. 1; Black v. Law Society of Alberta,
[1989] 1 S.C.R. 591; (1989), 96 A.R. 352; 58 D.L.R.
(4th) 317; [1989] 4 W.W.R. 1; 66 Alta. L.R. (2d) 97; 38
C.R.R. 193; 93 N.R. 266; Rocket v. Royal College of
Dental Surgeons of Ontario, [ 1990] 2 S.C.R. 232;
(1990), 111 N.R. 161; R. v. Logan, [1990] 2 S.C.R. 731;
(1990), 58 C.C.C. (3d) 391; Dick v. The Queen et al.,
[1985] 2 S.C.R. 309; (1985), 23 D.L.R. (4th) 33; [1986]
1 W.W.R. 1; 69 B.C.L.R. 184; 22 C.C.C. (3d) 129;
[1985] 4 C.N.L.R. 55; 62 N.R. 1; Minister of National
Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495;
(1978), 92 D.L.R. (3d) 1; [1978] CTC 829; 78 DTC
6258; Committee for the Commonwealth of Canada v.
Canada, [1991] 1 S.C.R. 139; Ford v. Quebec (Attorney
General), [1988] 2 S.C.R 712; (1988), 54 D.L.R. (4th)
577; 19 Q.A.C. 69; 10 C.H.R.R. D/5559; 36 C.R.R. 1; 90
N.R. 84; Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25
C.P.R. (3d) 417; 94 N.R. 167; Minister of Employment
and Immigration v. Satiacum (1989), 99 N.R. 171
(F.C.A.).
COUNSEL:
Roger D. McConchie for applicants.
Mary A. Humphries for respondent Minister
of Employment and Immigration.
Robert S. Anderson for respondent Charles
McVey.
SOLICITORS:
Ladner, Downs, Vancouver, for applicants.
Deputy Attorney General of Canada for
respondent Minister of Employment and
Immigration.
Farris, Vaughan, Wills & Murphy, Vancou-
ver, for respondent Charles McVey.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: The applicants seek, for the
second time, to set aside a decision of Adjudicator
R. G. Smith that the inquiry and detention review
hearings concerning the respondent McVey
("McVey") held under the Immigration Act,
R.S.C., 1985, c. I-2, as amended ("the Act"),
should be held in camera.
The story begins with two attempts by the
United States, following his arrest on an extradi
tion warrant in the Yukon in August, 1987, to
extradite McVey for different offences committed
in California. Both times the British Columbia
Court of Appeal held, per Hutcheon J.A., that the
offences were not extraditable: Re McVey, [1989]
2 W.W.R. 673; McVey v. U.S. (1989), 40
B.C.L.R. (2d) 273. McVey has been the subject of
substantial publicity in the United States since late
1983, and in British Columbia since his 1987
arrest.'
On November 9, 1989, the day after the latter
of these decisions was handed down, a report
mandated by two paragraphs of section 27 [as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 4] of the Act
' The respondent McVey noted in his factum (par. 9):
"There were either twelve or thirteen articles dealing with the
extradition hearing before Macdonnell, J. There was one small
article dealing with the extradition hearing before Dohm, J.
The enormous difference in the amount of publicity was
because Dohm, J. granted a ban of publication, whereas Mac-
donnell, J. did not."
was made against McVey by an immigration offi
cer: under paragraph 27(2)(e) he was reported as
overstaying after entering as a visitor; and under
paragraph 27(2)(g) as entering on a false visa in
the name of a citizen of Guatemala.
McVey's immigration inquiry, held in accord
ance with the report, began on November 15,
1989, and the first decision by Adjudicator Smith
under subsection 29(3) [as am. by R.S.C., 1985
(1st Supp.), c. 31, s. 99] of the Act, dismissing the
applicants' application for access to the inquiry
and the detention review hearings, was given on
December 4, 1989, on the ground that McVey's
wife, then resident in California, might suffer a
worsening of her terminal medical condition if the
hearings were open to the public.
That decision was struck down by this Court in
Pacific Press Ltd. v. Canada (Minister of
Employment and Immigration), [1990] 1 F.C. 419
(hereinafter referred to as McVey No. 1).
Mahoney J.A. said, at page 423, in delivering
judgment:
His [the Adjudicator's] reason for holding the inquiry in
camera was based solely on undisputed submissions, not evi
dence, to the effect that McVey's wife, resident somewhere in
the United States, "is suffering from terminal cancer and that
the publicity issuing from an inquiry may have a severe adverse
affect on her". Nothing was said of other measures that might
reasonably be taken to deny her access to the publicity. In my
opinion, that provided no proper basis for an exercise of discre
tion to close the inquiry. Whatever freedom of the press entails,
there must surely be an evidentiary basis to support its lawful
impairment in a judicial or quasi-judicial proceeding. The
Adjudicator erred in law in making the order he did without
evidence to support it.
The matter was returned to Adjudicator Smith,
who, after receiving evidence in both public and in
camera hearings, decided on October 18, 1990,
that the inquiry should be closed to the public, and
on November 2, 1990, that the complete reasons
for decision should not be published. It is those two
decisions which are under attack in the present
section 28 [Federal Court Act, R.S.C., 1985, c.
F-7] application. This time the reason for the
Adjudicator's decision was not the health of
McVey's wife, who had in the meantime passed
away, but that of McVey himself (Case IV, at
page 567):
Doctor Tamplin's evidence establishes two things. Firstly,
that Mr. McVey suffers from serious medical problems, and
secondly, that publication of stories relating to Mr. McVey
causes stress for Mr. McVey and significantly increases the risk
to Mr. McVey's health.
The testimony of Mr. Neil Graham, city editor of the
PROVINCE newspaper has satisfied me that if access to the
public is denied at Mr. McVey's inquiry the amount of publici
ty surrounding this proceeding will be drastically reduced.
Therefore, it is my opinion that if Mr. McVey's inquiry were
open to the public he would be adversely affected by way of
stress generated by the presence of the news media and the
resultant publication of the events.
What the final result of that adverse affect might be is
impossible for anyone to forecast with any certainty. I am,
however, satisfied from the whole of Dr. Tamplin's testimony
that the potential exists for those results to be of a very dire
nature.
I am satisfied therefore that the adverse affect is of such a
serious potential nature as to meet the test for excluding the
public from attending Mr. McVey's inquiry.
The statutory provision principally in question is
section 29 of the Act:
29. (1) An inquiry by an adjudicator shall be held in the
presence of the person with respect to whom the inquiry is to be
held wherever practicable.
(2) At the request or with the permission of the person with
respect to whom an inquiry is to be held, an adjudicator shall
allow any person to attend an inquiry if such attendance is not
likely to impede the inquiry.
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera unless it is established to
the satisfaction of the adjudicator, on application by a member
of the public, that the conduct of the inquiry in public would
not impede the inquiry and that the person with respect to
whom the inquiry is to be held or any member of that person's
family would not be adversely affected if the inquiry were to be
conducted in public.
Subsection 29(3) was challenged by the appli
cants as being of no force and effect because
inconsistent with paragraph 2(b) of 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.) [R.S.C.,
1985, Appendix II, No. 44]], which reads as
follows:
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
A similar constitutional challenge was also
raised in McVey No. 1, but the issue was not
considered ripe for determination by this Court at
that time, both because it had not been squarely
before the Adjudicator and because the respond
ents had not had an opportunity to adduce evi
dence in relation to a section 1 justification.
Alternatively, the applicants argued that subsec
tion 29(3) does not apply to McVey because,
properly interpreted, it relates not to all immigra
tion claimants, but only to refugee claimants who
prove they require secrecy in order to avoid perse
cution by foreign authorities, and in those
instances the probable consequences of such perse
cution outweigh the rights guaranteed by para
graph 2(b) of the Charter.
As a further alternative, the applicants claimed
that the Adjudicator erred in law by finding that
McVey would be adversely affected on the basis of
conjecture and speculation, rather than evidence,
the evidence permitting only an inference that
McVey's objective is to censor the media to pre
vent publicity he considers unfavourable.
Courts often prefer not to address constitutional
issues where cases can be decided on other
grounds, but I believe that approach would not be
appropriate in the case at bar, since Parliament
enacted subsection 29(3) with great deliberateness.
The legislative history of the provision was
reviewed by Martin J. in Toronto Star Newspa
pers Ltd. v. Kenney, [1990] 1 F.C. 425 (T.D.), at
pages 436-440. The original section 29 [Immigra-
tion Act, 1976, S.C. 1976-77, c. 52] read simply:
29. (1) An inquiry by an adjudicator shall be held in the
presence of the person with respect to whom the inquiry is to be
held wherever practicable.
(2) At the request or with the permission of the person with
respect to whom an inquiry is to be held, an adjudicator shall
allow any person to attend an inquiry if such attendance is not
likely to impede the inquiry.
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera.
The Government became concerned, following Re
Southam Inc. and The Queen (No. 1) (1983), 41
O.R. (2d) 113 (C.A.) that this virtually mandato
ry in camera proceeding would offend against
freedom of the press as guaranteed by paragraph
2(b) of the Charter. In Re Southam (No. 1) the
Ontario Court of Appeal had struck down a provi
sion of the Juvenile Delinquents Act [R.S.C. 1970,
c. J-3] which provided for an absolute ban on the
public's attending the hearings of juvenile proceed
ings, leaving no discretion in the juvenile) court
judge to permit public hearings in any case. Conse
quently the Government proposed in 1985 that
subsections (2) and (3) of section 29 be repealed
and be replaced by the following:
29....
(2) An inquiry by an adjudicator may, on application there-
for, be held in camera if it is established to the satisfaction of
the adjudicator that the person with respect to whom the
inquiry is to be held, or any interest of Her Majesty, as the case
may be, would be adversely affected if the inquiry were con
ducted in public.
But the parliamentary committee studying the
bill felt that this wording was not sufficiently
protective of Convention refugees. In the words of
Martin J., at pages 439-440:
By May 9, 1985, it became apparent that the legislators were
not satisfied with the proposed amendment because it appeared
it would be too easy for a member of the public to compel a
public hearing and thereby, in the minds of the legislators at
least, to jeopardize the safety of the refugee claimant or his
family. The following exchange between Mr. Robinson and Mr.
Speyer at the House of Commons Committee on Justice and
Legal Affairs [Issue No. 29], at which the amendment, which
is the present law, was proposed, states quite clearly the
intention behind the amendment [at pages 29:22-29:23]:
Mr. Robinson: ... I just wanted to seek the clarification
from the Parliamentary Secretary that, in fact, the intent
of this wording is that an individual — presumably usually
a member of the press, but it could be any member of the
public — who does want to have an open hearing would
have to show two things: first of all, that an open hearing
would not impede the inquiry, and second, that there
would be an affirmative obligation on the applicant to
show there would be no adverse impact either on the
applicant for refugee status or on that person's family. In
other words, they could not just say, well, I want to be
here, I am not going to impede this hearing, and then that
is the end of the matter. They have to go beyond that.
There are two onuses which they have to establish.
Mr. Speyer: Mr. Chairman, that is precisely what our
intent is. There has been extensive discussion with respect
to this section. I think it is important we come back to Mr.
Robinson's point a few moments ago.
The purpose of this exercise today, and of this bill, is to
seek to make sure existing sections of federal statutes
conform to the Charter of Rights. It is the perception of
this government that the sections we have here do not, and
that is why we are improving them. Mr. Heap asked the
Minister of Justice certain questions about legitimate con
cerns he has with respect to refugee hearings.
I must speak for myself, and having discussed it with
members from our side, we want to do nothing to jeopard
ize a refugee at a hearing when he might be adversely
affected by testimony that is given; and it is important to
understand the nature of a refugee hearing and what the
refugee has to demonstrate. We do not want relatives of
the refugees, or the refugee himself, in any way to be put
in peril as the result of a constitutional amendment, as
opposed to a policy amendment. I give you that undertak
ing in terms of that is our intention; and that is why I think
your amendment is an improvement over what was in the
bill.
As a result, subsection 29(3) as it is before us was
adopted at that time. It seems clear from this
account of the genesis of this legislative provision
that its very purpose was to prevent access to
immigration inquiries by the press and the public,
except in limited circumstances, in order to enable
Convention refugees to speak freely of their
experiences, without danger of reprisals from those
from whom they have fled. 2
Thus, given Parliament's clear awareness of the
constitutional dimension and its determination at
all costs not to jeopardize Convention refugees at
inquiries, it seems to me that it would not be
appropriate here to pass by the constitutional
issue, and therefore I propose to turn to it first.
2 Although there are still limitations on the use that may be
made of Parliamentary Debates in interpreting statutes (see
Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346
(C.A.); Thomson v. Canada, [1988] 3 F.C. 108 (C.A.)), such
"extrinsic material, bearing on the circumstances in which the
legislation was passed, may be considered by the Court in
determining whether the legislation rests on a valid constitu
tional base": Re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p.
391 (per Laskin C.J.).
Subject to the issue I shall later raise as to the
extent to which inquiries under the Act should be
analogized to judicial proceedings, if the ban on
attendance at immigration inquiries by the public,
including the press, were absolute, then there can
be little doubt that it would even at first blush
infringe paragraph 2(b): Re Southam (No. I).
However, the ban on public attendance at hearings
is not here absolute; after stating that "an inquiry
by an adjudicator shall be held in camera", sub
section 29(3) of the Immigration Act goes on to
add "unless ..." It was on this "unless" clause
that the respondents built their argument.
They said that, in addition to the rights of the
press under paragraph 2(b) of the Charter, we
must also take account of the rights of a person
concerned in an immigration inquiry, rights which
were recognized under section 7 of the Charter in
Singh et al. v. Minister of Employment and
Immigration, [1985] 1 S.C.R. 177. In such a case
of collision among Charter rights, they contended,
it is not necessary to go immediately to section 1 to
attempt to justify one of them. The extent of the
right alleged to be infringed should first be exam
ined to determine whether that right can by defini
tion include the right to infringe on a section 7
right. It was argued that paragraph 2(b) contains
within itself a limitation which prevents the unre
stricted access by the press or public where such
access would infringe the person's section 7 right.
In my view this appeal to a section 7 right is
inapposite here. The section 7 right to be treated
"in accordance with the principles of fundamental
justice" could conceivably be infringed where a
statute provided no protection from public disclo
sure, but it would be just as adequately protected,
e.g., by the original Government proposal in 1985
as by the version finally adopted. No one in this
case has argued for the invasion of section 7 rights
and, given the implied in camera effect of the
unchallenged subsection 29(2), they do not appear
to be threatened by any outcome of this case.
Nevertheless, an issue does remain as to the
extent of the paragraph 2(b) right of freedom of
the press, apart from its putative collision with
section 7. Basing themselves on the "unless"
clause, the respondents argued that the statute sets
up a constitutionally valid process by which the
competing values can be addressed and weighed. It
establishes what they called a full and fair process
containing "a built-in balancing procedure" that
forecloses the need for balancing under section 1
of the Charter and that therefore does not infringe
paragraph 2(b) rights. In support of this approach
they cited Toronto Star, supra. In that case
Martin J. wrote, at pages 444-446:
[T]o apply the literal meaning of subsection 29(3) burden of
proof upon the applicants in this case, and in general, is to
apply a burden which is impossible to discharge. How can, for
example, the applicants prove to the satisfaction of the
adjudicator that no member of Mohammad's family would be
adversely affected if the inquiry were to be conducted in public
when the applicants may not, and in most cases will not, have
any idea who or where are the members of the refugee claim
ant's family.
Likewise it is impossible for the applicants in this case or any
other case to prove that the conduct of the inquiry in public
would not impede it. To some extent the answer to that
question will depend upon the evidence which the refugee
claimant intends to lead. A refugee claimant from the United
States or the United Kingdom might not have the same con
cerns about disclosing fully his reasons for claiming refugee
status as would a refugee claimant from Northern Ireland, Iran
or China, but the factual basis for those concerns, like the
concerns for the safety of the refugee claimant's family left in
his country of origin, are uniquely within the knowledge of the
refugee claimant and not the applicant from the public. By that
I mean to say it is not in all cases of refugee claimants that
there will be automatically generated an environment in which
the claimant cannot feel free to disclose the reasons for his
claimed status and that the burden should be upon the refugee
claimant to establish the existence of an environment which will
diminish his ability to fully disclose the facts which support his
claim. Furthermore, as I understand the position of the Attor
ney General of Canada, it is admitted there can be some
credible basis hearings which could be held in public without
impeding the inquiry or having adverse affect upon the refugee
claimant or his family.
In my view, if the burden of proof or onus of proof apparent
ly placed upon the member of the public by subsection 29(3) is,
as a practical matter, one which is impossible to discharge and,
if the exercise of the adjudicator's discretion in favour of
conducting the hearing in public is dependent upon the member
of the public meeting that burden or discharging that onus,
then in fact and in substance there is no discretion and subsec
tion 29(3) would have to be declared unconstitutional on the
basis of Southam (No. 1).
The arguments before me all proceeded on the basis that in
the application of subsection 29(3) the burden would be upon
the member of the public seeking to have the inquiry held in
public to establish by evidence which would be lead [sic] by the
applicant that its conduct in public would not impede it nor
would the immigrant or any members of his family be adversely
affected if it were conducted in public.
As I have indicated I would find subsection 29(3) to be
unconstitutional if it were to be applied in that manner and, in
the absence of the recent Pacific Press Ltd. v. Canada (Minis-
ter of Employment and Immigration), [ 1990] 1 F.C. 419
(C.A.), I would have found that to be the manner in which the
subsection should be applied [see 104 N.R. 228]. In that
respect I would have been overruled by the Appeal Division
which found [at page 6] that, with respect to the burden of
proof,
... the assertion of a right to access to a judicial or quasi-
judicial proceeding founded on paragraph 2(b) of the Chart
er must, of itself, inferentially satisfy that slight burden and
shift the onus to the person seeking to exclude the press.
Given that interpretation of subsection 29(3) of the Act it is
my view that the constitutional balance between the right of
access to the hearing and the protection of the rights of the
refugee claimant have been maintained by the restoration of a
real discretion in the Adjudicator to determine on a case-by-
case basis and on the particular circumstances of each case
whether or not the credible basis hearing should be held in
camera or conducted in public. So long as subsection 29(3) is
applied in that manner I can see no reason for finding it to be
unconstitutional.
In the light of this interpretation of McVey No.
1 Martin J. refused to declare that subsection
29(3) of the Act was void and of no effect or
unconstitutional.
In my view he misinterpreted the dicta of
McVey No. 1 in coming to that conclusion.
Mahoney J.A. was very careful in McVey No. 1,
although identifying two weaknesses in subsection
29(3), not to express "a concluded opinion" on the
issue, of constitutionality. He said, at pages
422-423:
Subsection 29(3) does give the Adjudicator a discretion. It
places on a member of the public, interested in doing so, the
onus of establishing two negatives: that the conduct of the
inquiry in public would not impede it and that neither the
person concerned nor any member of that person's family
would be thereby adversely affected. The latter limitation is
odd. What, for example of the prison guard, policeman or
soldier who, through friendship, bribery or sympathy, has
facilitated a refugee claimant's escape and what of resident
foreigners, perhaps missionaries or business people, willing to
testify only if their opportunity to return is not prejudiced?
It may be arguable that the onus is misplaced. Again, I think
it best, in the circumstances, not to express a concluded opinion
on that aspect of the provision. The practical consequence
seems not, in my view of the question, to be particularly
significant since the standard properly to have been applied by
the Adjudicator was as stated by Aylesworth, J.A., in R. v.
Cameron, [1966] 58 D.L.R. (2d) 486; (1966), 4 C.C.C. 273; 49
C.R. 49 (Ont. C.A.), at page 498 D.L.R.:
Where, however, the onus lies upon the Crown to prove a
negative as an element of the charge, little proof will often
suffice. Such proof often must be drawn by inference from
other proven facts.
It seems to me that the assertion of a right to access to a
judicial or quasi-judicial proceeding founded on paragraph 2(b)
of the Charter must, of itself, inferentially satisfy that slight
burden and shift the onus to the person seeking to exclude the
press.
It seems to me that Mahoney J.A. in this pas
sage was referring to two apparent problems with
subsection 29(3): the limitation of the ambit of
protection to the claimant and his family; and the
placing of the onus of proof on the person request
ing an open hearing. But the Court was not going
to carry out such an analysis in that case because
it would have led eventually to a consideration of
section 1, on which no evidence had been present
ed. Nevertheless, the Court could say at least this,
viz., that, abstracting from the effect the Charter
might have had on the constitutionality of subsec
tion 29(3), it must as an alternative have had the
effect of transforming the statutory language by
discharging the burden of proof and relocating it
on the claimant.
I do not believe that the above passage repre
sents a concluded opinion that subsection 29(3)
should be "read down." In fact, it explicitly
excludes any such concluded opinion, and there
fore cannot be taken as establishing, as Martin J.
took it, that any constitutional problems with sub
section 29(3) have been resolved. In fact, as
Mahoney J.A. indicated in his comment on what
he found to be the "odd" limitation of the protect
ed group to the refugee claimant and his family,
possible constitutional problems with subsection
29(3) are not limited to the question of onus.
Reading a statute down is essentially judicial
re-drafting of it and is done only when an offend
ing clause is clearly severable without causing
damage to the whole, or unclear language can
easily be made more clear: Black v. Law Society
of Alberta, [ 1989] 1 S.C.R. 591; Rocket v. Royal
College of Dental Surgeons of Ontario, [ 1990] 2
S.C.R. 232; R. v. Logan, [1990] 2 S.C.R. 731.
Where the impact of the legislative provision is
"the very result contemplated by the Legislature
and pursued by it as a matter of policy," reading
down is particularly inappropriate: Dick v. The
Queen et al., [1985] 2 S.C.R. 309, at page 322.
When we turn to paragraph 2(b) of the Charter,
we find that the principle of public access to the
courts was established even before the Charter
itself came into being in 1982. In Attorney General
of Nova Scotia et al. v. Maclntyre, [1982]
1 S.C.R. 175, where the issue was the access of a
journalist to court records, a majority of the
Supreme Court endorsed the statement by Dickson
J. [as he then was] (at page 189) that "The
presumption ... is in favour of public access and
the burden of contrary proof lies upon the person
who would deny the exercise of the right." Dickson
J. (at pages 186-187) also enunciated the principle
that "curtailment of public accessibility can only
be justified where there is present the need to
protect social values of superordinate importance."
In the recent Charter decision, Edmonton Jour
nal v. Alberta (Attorney General), [1989] 2 S.C.R.
1326, which concerned provisions of the Alberta
Judicature Act [R.S.A. 1980, c. J-1] limiting the
publication of details of matrimonial proceedings
and civil proceedings generally, Cory J. for three
of the seven members of the Court (at page 1336)
referred to the "absolute terms" of paragraph
2(b), which "should therefore only be restricted in
the clearest of circumstances." He spoke of the
role of the press in relation to the courts as follows
(at pages 1337 and 1346):
There can be no doubt that the courts play an important role
in any democratic society. They are the forum not only for the
resolution of disputes between citizens, but for the resolution of
disputes between the citizens and the state in all its manifesta
tions. The more complex society becomes, the more important
becomes the function of the courts. As a result of their signifi-
cance, the courts must be open to public scrutiny and to public
criticism of their operation by the public.
In today's society it is the press reports of trials that make the
courts truly open to the public.
Wilson J., also in the majority, agreed (at page
1362) that "there would have to be very powerful
considerations in order to justify inroads into the
open court process."
Although no party raised the issue in argument,
I believe we must address the question I referred
to at the outset of this part, viz., as to the extent to
which inquiries under the Act should be analo-
gized to judicial proceedings. Immigration
adjudicators are not judges as such, and immigra
tion inquiries are not courts. To what extent does
the right of the citizen and of the press to access
apply to adjudicators engaged in inquiries?
This issue arose before Rouleau J. in Southam
Inc. v. Canada (Minister of Employment and
Immigration), [1987] 3 F.C. 329 (T.D.), where he
ordered an open hearing with respect to detention
review hearings under the Act (but where no
provision of the Act was impugned because the
Act is silent on that particular question). After
citing the decision in Re Southam (No. 1), Rou-
leau J. raised the question (at page 336):
That decision [Re Southam (No. 1)] arose in the context of a
court proceeding. The detention review hearing in this case
involves a statutory body exercising its functions and it is to be
determined if they are judicial or quasi-judicial in nature and
by implication subject to accessibility; does the openness rule
apply to their proceedings.
He then referred to the fourfold test adumbrated
by Dickson J. (as he then was) in Minister of
National Revenue v. Coopers and Lybrand,
[1979] 1 S.C.R. 495, at page 504, for determining
whether a proceeding is judicial or quasi-judicial.
He concluded (at page 336):
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 tribu
nals' authority 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.
In my view Rouleau J. was entirely correct in
his analysis, both as to the quasi-judicial nature of
the adjudicator's role in an inquiry and as to the
consequences with respect to access.
In Maclntyre, supra, the issue of access arose
with respect to the issuance of search warrants by
a justice of the peace. In upholding the application
of the principle of access to search warrants and
the information upon which they were issued,
Dickson J. (as he then was) said (at pages
185-186):
The cases mentioned, however, and many others which could be
cited, establish the broad principle of "openness" in judicial
proceedings, whatever their nature, and in the exercise of
judicial powers. The same policy considerations upon which is
predicated our reluctance to inhibit accessibility at the trial
stage are still present and should be addressed at the pretrial
stage. [Emphasis added.]
It seems to me clear from the breadth of the
language employed that the principle of openness
must be deemed to apply to every "exercise of
judicial powers," and therefore even to that of an
adjudicator under the Act.
It also appears that the respective policy con
siderations founding the reluctance of our law to
inhibit the accessibility of immigration inquiries
and court proceedings are analogous. The principal
thrust, for example, of Cory J.'s argument for
access in Edmonton Journal, supra, is to ensure
what he termed "the penetrating light of public
scrutiny" (at page 1339). This penetrating light is,
I believe, equally required in respect of inquiries
under the Immigration Act.
The legislative history we have reviewed shows
that it was following Re Southam (No. 1) that the
Government became concerned about the constitu
tionality of subsection 29(3), obviously concluding
that no distinction could be drawn between immi
gration inquiries and judicial proceedings on this
point. In my view, the Government drew the obvi
ous conclusion.
The most recent statement of the Supreme
Court on freedom of expression is that in R. v.
Keegstra, [1990] 3 S.C.R. 697. 3 Reviewing other
decisions such as Ford v. Quebec (Attorney Gener
al), [1988] 2 S.C.R. 712 and Irwin Toy Ltd. v.
Quebec (Attorney General), [ 1989] 1 S.C.R. 927,
Chief Justice Dickson, for the majority, affirmed
[at page 728] "the large and liberal interpretation
given the freedom in s. 2(b) by the Court in Ford."
He went on to outline the proper procedure to
follow in freedom-of-expression cases [at pages
729-730]:
The first step in the Irwin Toy analysis involves asking
whether the activity of the litigant who alleges an infringement
of the freedom of expression falls within the protected s. 2(b)
sphere .... Apart from rare cases where expression is com
municated in a physically violent form, the Court thus viewed
the fundamental nature of the freedom of expression as ensur
ing that "if the activity conveys or attempts to convey a
meaning, it has expressive content and prima facie falls within
the scope of the guarantee" (p. 969). In other words, the term
"expression" as used in s. 2(b) of the Charter embraces all
content of expression irrespective of the particular meaning or
message sought to be conveyed (Reference re ss. 193 and
195.1(1)(c) of the Criminal Code of Canada (Man.), supra, at
p. 1181 per Lamer J.).
The second step in the analysis outlined in Irwin Toy is to
determine whether the purpose of the impugned government
action is to restrict freedom of expression. The guarantee of
freedom of expression will necessarily be infringed by govern
ment action having such a purpose. If, however, it is the effect
of the action, rather than the purpose, that restricts an activity,
s. 2(b) is not brought into play unless it can be demonstrated by
the party alleging an infringement that the activity supports
rather than undermines the principles and values upon which
freedom of expression is based.
Where the purpose of the impugned government
action is to restrict freedom of expression, the
section 2 guarantee will necessarily be infringed.
Since, as I have already shown, the legislative
purpose behind subsection 29(3) is to prevent
access to immigration inquiries by the press and
public, and is thus to restrict freedom of expres
sion, I must hold that freedom of expression and of
the press is infringed by subsection 29(3).
3 The subsequent decision of the court in Committee for the
Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139,
appears to have no implications for the proper scope of s. 2
beyond the freedom of forum area.
The general approach to section 1 in determining
whether a limit on a right or freedom can be
demonstrably justified in a free and democratic
society was set out by the Supreme Court in R. v.
Oakes, [1986] 1 S.C.R. 103. The analysis involves
a distinction between end and means whereby the
Government must first establish that the impugned
state action has an objective of pressing and sub
stantial concern in a free and democratic society
and, secondly, that the means are proportional to
this end.
The objective of the legislative provision in the
case at bar may fairly, I believe, be set out in the
words of Parliamentary Secretary Speyer in the
passage already quoted from Martin J. in Toronto
Star:
[W]e want to do nothing to jeopardize a refugee at a hearing
when he might be adversely affected by testimony that is given;
and it is important to understand the nature of a refugee
hearing and what the refugee has to demonstrate. We do not
want relatives of the refugees, or the refugee himself, in any
way to be put in peril .... I give you that undertaking in terms
of that is our intention ....
If this were not convincing on its face as estab
lishing an objective of pressing and substantial
concern, the Government has supplemented this
objective in its section 1 brief with documentary
evidence from the United States, the United King
dom, Australia, New Zealand, and Sweden, all
showing a general awareness in democratic coun
tries of the need for confidentiality in the process
ing of Convention refugee claims. Clearly the
security of the person of the claimant is at stake —
as well as the security of all those in his or her
home country who may have abetted this escape,
even if they cannot themselves qualify for Charter
protection. I have no hesitation in finding that the
objective here is of sufficient stature to warrant
overriding freedom of expression and of the press,
and in fact this point was conceded by the
applicants.
The second feature of the Oakes test is the
proportionality of means to end. In Oakes this
inquiry was broken down into three segments (at
page 139):
There are, in my view, three important components of a
proportionality test. First, the measures adopted must be care
fully designed to achieve the objective in question. They must
not be arbitrary, unfair or based on irrational considerations. In
short, they must be rationally connected to the objective.
Second, the means, even if rationally connected to the objective
in this first sense, should impair "as little as possible" the right
or freedom in question .... Third, there must be a proportion
ality between the effects of the measures which are responsible
for limiting the Charter right or freedom, and the objective
which has been identified as of "sufficient importance".
The first element to be established is that the
means are rationally connected to the end.
The problem here arises from the fact that
McVey has not claimed Convention refugee status,
and it might even be thought to be difficult for
him to do so, coming from a country like the
United States with a democratic government and
an independent judicial system: Minister of
Employment and Immigration v. Satiacum
(1989), 99 N.R. 171 (F.C.A.), at page 176. More
important, the legislation is not limited to immi
gration inquiries of refugees, but applies to all
inquiries of every kind whatsoever. How can such
a provision of universal application be rationally
connected to the admitted need to protect
refugees?
If there is an answer, it is found in the scheme of
the Act. In some of the other countries surveyed,
refugee claims are handled in a special stream and
are always dealt with in camera. In the U.K., for
instance, this is done as a matter of administrative
practice. But the scheme of the Canadian Act is
different. All inquiries begin in the same way, but
subsection 43(1) [as am. by R.S.C., 1985 (4th
Supp.), c. 28, s. 14] provides that a person who is
the subject of an inquiry must be given an oppor
tunity to claim refugee status "[b]efore any sub
stantive evidence is given at an inquiry". In the
case at bar, when the issue as to an open or closed
hearing was raised at the very outset of the inqui
ry, as it had to be, the opportunity to make a
refugee claim had not yet arisen. As of that
moment, I believe the respondents are right that
the provision has to apply to all subjects of an
inquiry in order to adequately protect potential
refugee claimants.
It is harder to justify the limitation of the ambit
of protection to the claimant himself and to his
family. What of any other person who, in the
words of Mahoney J.A., in McVey No. 1 at page
422 "through friendship, bribery or sympathy, has
facilitated a refugee claimant's escape and what of
resident foreigners, perhaps missionaries or busi
ness people, willing to testify only if their opportu
nity to return is not prejudiced?" Since the focus
of the provision is not the safety of such other
persons, but rendering the claimant secure in his
testimony, perhaps it might be argued that he
would care less about their fate than about that of
family members, but such a contention is too
cynical to constitute legislative motivation.
A better justification is that the underinclusive-
ness of the ambit of adverse effect should not be
found to be fatal, even if the cut-off is irrational,
so long as those included (the claimant and his
family) themselves have a rational connection to
the goal. That they do is undeniably true, but I do
not find it necessary to resolve this point since in
my view the fate of the legislation is decided by
the next two criteria: minimal impairment of the
right and proportionality of effect. I intend to
consider these two elements together since they
tend to overlap in their excess of inclusiveness.
One respect in which they do so is the reverse
onus of subsection 29(3) which puts on the
member of the public seeking to open the hearing
a burden of proof which is impossible to discharge.
This was noted by Martin J. in Toronto Star (at
pages 443-445) and I adopt his reasoning as to its
impossibility.
Another overinclusive feature was remarked by
the Adjudicator (Case IV, at page 568):
It appears that if a ban could be imposed on publication it
might be conceivable to conduct the inquiry in public but as I
do not have power it is not possible to consider this as a
potential solution.
This very absence of alternatives for the Adjudica
tor is a mark of legislative overreach.
A third deficiency was drawn to the Court's
attention by the applicants, who pointed out that
the effect of subsection 29(3), combined with sub
section 29(2), is to give the person who is the
subject of the inquiry a "licence" to determine
which members of the public, including possibly
the media, would have exclusive access to the
hearing. However, since we were not invited to
interpret subsection 29(2) in this case, I come to
no final determination on this point.
Perhaps the greatest flaw is that to allow a final
decision to be made on access, before a refugee
claim is actually made, is an extreme instance of
overinclusiveness. It would be enough to allow a
temporary decision to be made on access or publi
cation, to remain in place only until a refugee
claim had been made or declined, after which time
a final decision could be made.
The respondents claimed that the procedure
chosen by the Act was necessary to protect claim
ants in an adequate way, because otherwise it
could be assumed by watchers badly motivated
towards a claimant that his was a refugee hearing
since every in camera hearing was a refugee hear
ing. But since other persons besides refugees can
also claim in camera status and make their case to
that effect before an adjudicator I cannot see this
as a practical danger. Moreover, the system in
place is far from a watertight one. Anyone can
have access to court refugee files, which are not
closed even when a hearing is, and review decisions
of this Court are published under the real names of
the claimants, allowing hostile watchers to gather
information in that fashion. It would in my view at
the very least require a legislated system of water
tight security to make a convincing case on this
basis.
I believe that Cory J. expressed the proper
section 1 approach to public-access cases when he
wrote in Edmonton Journal, supra, at page 1347:
The importance of freedom of expression and of public access
to the courts through the press reports of the evidence, argu
ments and the conduct of judges and judicial officers is of such
paramount importance that any interference with it must be of
a minimal nature.
The interference in the case at bar cannot in my
view be said to be "of a minimal nature." While
less maximal than a total prohibition of access, it
nevertheless wrongly reverses the onus of proof,
makes no provision for anything between total
access and total prohibition, and applies not only
to the refugee class Parliament aimed to protect
but to all inquiries for whatever purpose. The
respondents did not even seek to defend the
application of subsection 29(3) to non-refugees
except in the secondary sense that it protected
refugees by helping to obscure who were and who
were not refugee claimants.
I would emphasize that the legislative intention
of protecting refugee claimants cannot be defend
ed beyond the moment at which claimants must
indicate whether they are making refugee claims
or not; for those who are not, no further general
denial of public access is justifiable. In my opinion
subsection 29(3), as written, is seriously excessive
legislation, and should be held to be of no force or
effect under subsection 52(1) of the Constitution
Act, 1982 [Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
Given the invalidity of subsection 29(3), the
effect of subsection 29(2) might well be to require
all inquiries to be conducted in camera, except
with the specific permission of the claimant. If it
were not to have that effect, it might have the
contrary effect of leaving refugee claimants with
out any possibility of protection. However, subsec
tion 29(2) of the Immigration Act, as amended,
was not challenged by the applicants and is not
therefore under review on this section 28 applica
tion. The invalidity of subsection 29(3), therefore,
coupled with the continuance of subsection 29(2),
gives rise to a real possibility of confusion and even
chaos in the administration of the refugee
program.
Since it appears to me necessary, in order to
preserve the rule of the law in this area, that
Parliament be allowed sufficient time to amend
the law in accordance with this decision, I would
deem subsection 29(3) temporarily valid and effec
tive, on the authority of Reference re Manitoba
Language Rights, [1985] 1 S.C.R. 721, for a
period of one year, a time frame that I believe
would normally provide Parliament with adequate
time to amend the law, subject to the right in the
respondent Minister to apply to this Court for a
longer period of temporary validity if special cir
cumstances should arise.
The applicants' first alternative submission related
to the correct interpretation to be given to subsec
tion 29(3) in the event that it did not infringe
paragraph 2(b) and section 1 of the Charter. In
the event, I do not need to consider that argument
directly.
Their further alternative submission had to do
with the correct sense of the words "adversely
affected" in the final clause of subsection 29(3):
"and that the person with respect to whom the
inquiry is to be held or any member of that
person's family would not be adversely affected if
the inquiry were to be conducted in public."
[Underlining added.]
As I have felt constrained to authorize a one-
year temporary validity of subsection 29(3), I feel
that in fairness to the applicants I ought to deal as
well with this final alternative, since it need not be
subject to any delay in implementation.
In supplementary memoranda on the words
"adversely affected," both the applicants and the
respondent Minister agreed that they cannot be
given their widest meaning. I would agree with the
following four guidelines advanced by the respond
ent Minister (supplementary memorandum of fact
and law, paragraph 9):
a) inquiry subjects cannot show that they will be adversely
affected by a public hearing merely by establishing that
they will be embarrassed or humiliated by publication of
information disclosed at the hearing;
b) an inquiry subject cannot rely upon a privacy interest to
establish adverse effect, since privacy has only been found
to be compelling in matrimonial cases involving allega
tions of cruel, immoral or aberrant behaviour; (Edmonton
Journal);
c) inquiry subjects may establish adverse effect by showing
that their concerns are consistent with the purpose of s.
29(3) and consistent with Charter principles; and
d) there must be some direct link between the publicity and
personal danger to inquiry subjects or their families.
In fact, I would add one other guideline before
proceeding to the case-by-case basis suggested by
the respondent Minister. The basis of the
Adjudicator's decision in the case at bar was as
follows (Case IV, at page 567):
[Ijt is my opinion that if Mr. McVey's inquiry were open to the
public he would be adversely affected by way of stress gener
ated by the presence of the news media and the resultant
publication of the events.
In my opinion "stress generated by the presence of
the news media," whatever its effect on the health
of the participants in the proceeding, is insufficient
in law to constitute adverse effect as set out in
subsection 29(3). If the effect on the refugee
claimant's health was such that he could not be
present at the inquiry, then the Adjudicator would
have the traditional option of adjournment, but
that is not the case here.
The French text of subsection 29(3), is, I
believe, somewhat stronger than the English:
... et que ni l'intéressé ni les membres de sa famille ne s'en
trouveraient lésés.
The French "lésés" has the sense of wronged, or
damaged, or injured, and may be said to connote
something more than psychological adversity.
More important, what we have already seen of
the parliamentary intention behind the provision
indicates that the evil consequence to be avoided
was direct physical harm in the sense of govern
mental reprisals involving prosecution, imprison
ment, and physical maltreatment, even death. In
my view, tension, even considered as a medical
condition with possibly serious health conse
quences, can be placed no higher in the interpreta
tion of subsection 29(3) than "the sensibilities of
the individuals involved," which, as Dickson J.
observed in Maclntyre (at page 185) "are no basis
for exclusion of the public from judicial proceed
ings." The same principle of the openness of our
judicial system was recently emphasized by this
Court in C.D. v. Canada (Minister of National
Revenue), no. A-207-90, decided March 15, 1991
(per Décary J.A.) [not yet reported].
The section 28 application should therefore suc
ceed on this ground as well.
In the result, the section 28 application should be
allowed, the decisions of the Adjudicator of Octo-
ber 18 and November 2, 1990, set aside, and the
matter remitted to the Adjudicator for continu
ance of the inquiry in a manner not inconsistent
with these reasons for judgment. With respect to
subsection 29(3) of the Immigration Act, as
amended, it should be deemed temporarily valid
for one year from the date of this judgment to
allow Parliament time to act appropriately, subject
to the right in the respondent Minister to apply to
this Court for a longer period of temporary validi
ty if special circumstances should arise. Moreover,
the whole of this judgment should also be suspend
ed pending appeal, pursuant to Rule 341A(4)
[Federal Court Rules, C.R.C., c. 663 (as added by
SOR/79-57, s. 8)].
MAHONEY J.A.: I agree.
DÉCARY J.A.: I agree.
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.