A-452-91
Armadale Communications Limited, Russwood
Broadcasting Limited, William Robert Peterson
and James Mattern (Applicants)
v.
Lyle Moffatt, in his capacity as Adjudicator pur
suant to the Immigration Act, R.S.C. 1985, c. I-2,
the Minister of Employment and Immigration and
the Attorney General of Canada (Respondents)
INDEXED AS: ARMADALE COMMUNICATIONS LTD. V.
ADJUDICATOR (IMMIGRATION ACT) (C.A.)
Court of Appeal, Hugessen, Stone and Décary
JJ.A.—Regina, June 20; Ottawa, July 4, 1991.
Immigration — Practice — Adjudicator excluding public
from inquiry under Immigration Act, s. 29(3)— Federal Court
of Appeal having since declared s. 29(3) unconstitutional in
McVey case — Immigration Act vesting adjudicator with
"practical capability" to decide whether its provisions incon
sistent with Charter — While administrative tribunal whose
decisions subject to appeal lacking power to determine Charter
issues, only certain of adjudicator's decisions subject to statu
tory appeal — As operation of McVey suspended for one year,
guidelines set out for operation of s. 29(3) in interim —
Reverse onus provision abrogated — S. 29(3) protecting
against danger from publicity in country of origin, not stress
caused claimant by presence of media.
Federal Court jurisdiction — Appeal Division — Applica
tion to review Adjudicator's decision to exclude public from
inquiry under Immigration Act, s. 29(3) — Constitutionality of
s. 29(3) at issue — As adjudicator having "practical capabili
ty" of deciding constitutionality of provisions of Immigration
Act, also within Court's jurisdiction.
Judicial review — Applications to review — Adjudicator
deciding to exclude public from inquiry under Immigration
Act, s. 29(3) — Constitutionality of s. 29(3) questioned —
Court's power of review limited by powers of tribunal whose
decision under review — Judicial review not effective remedy
for person affected by invalid law — As no right of appeal
from decision under s. 29(3), adjudicator, and consequently
Court, having jurisdiction to determine constitutionality of
Act.
Constitutional law — Charter of Rights — Enforcement —
Inquiry under Immigration Act — Exclusion of press, public
— Introduction of medical evidence claimant's life or health
endangered by public inquiry matter for court of competent
jurisdiction under Charter, s. 24 not for adjudicator.
This was an application to review the Adjudicator's decision
to exclude the public from an inquiry under Immigration Act,
subsection 29(3) because an open inquiry could be too stressful
for the subject, who had been detained on a Lieutenant Gover
nor's Warrant after acquittal of homicide on grounds of insani
ty. Subsection 29(3) provides that inquiries shall be in camera
unless the adjudicator is satisfied that conduct of the inquiry in
public would not impede the inquiry and that the refugee and
his relatives would not be adversely affected if the inquiry were
conducted in public. The Adjudicator's decision was made prior
to the Federal Court of Appeal's declaration in McVey that
subsection 29(3) was unconstitutional, although operation of
that decision was suspended for one year to "preserve the rule
of law".
The Supreme Court of Canada has recently held that an
administrative tribunal whose decisions are subject to appeal on
questions of law does not have jurisdiction to determine Chart
er issues, and that consequently this Court does not have
jurisdiction to determine the constitutional question in section
28 proceedings.
Two issues were raised by this application: (1) whether the
Adjudicator had the power to decide the Charter issue and,
consequently, whether this Court has jurisdiction to review such
decision; and (2) how subsection 29(3) can continue to operate
so as to give effect to its object (protection of refugees and their
relatives from the possible consequences of publicity of the
claim and testimony in the claimant's country of origin) while
protecting the Charter rights which it infringes.
Held, the application should be allowed.
(1) The Immigration Act vests an adjudicator with the
"practical capability" to decide questions of law, including
questions touching the application and supremacy of the Chart
er and nothing in the Act indicates any intention to the
contrary. Any other conclusion would result in the wholesale
denial of effective Charter remedies in that, while there is a
right of appeal from certain adjudicators' decisions on ques
tions of law, others are not subject to appeal. Indeed, decisions
under subsection 29(3) are not appealable. That any of these
unappealable decisions may be subject to judicial review does
not provide a useful remedy to the person who suffers from the
application of an invalid or inoperative law, since the Court on
review is limited by the powers of the tribunal whose decision is
being reviewed. The Court consequently has jurisdiction to
determine the Charter issue raised by these proceedings.
(2) In order to prevent infringement of the Charter rights of
those in situations such as that at bar, guidelines for the interim
operation of subsection 29(3) should be set out. The reverse
onus provision cannot survive. Anyone seeking an in camera
hearing must satisfy the presiding officer that the circum
stances justify departure from the general rule that all court
and quasi-judicial proceedings be open to the public. The
likelihood that the life, liberty or security of the claimant or a
relative would be endangered if the hearing were held in public
and the details became known in his country of origin would
have to be demonstrated. The standard of proof need not be
high. Since a request to close the hearing can take place only in
the context of a refugee claim, the same test should be applied
as for the claim itself i.e. the existence of a "reasonable
chance" or "good grounds" to fear danger. The adjudicator
may base his opinion on any sources of information which he
finds to be credible and trustworthy. Where there is a possibili
ty of danger arising from the publicity of the proceeding to
determine whether the hearing should be open to the public,
written undertakings to keep confidential certain information
until it was determined that the hearing should be open could
be required of those present, or some information could be
given to the adjudicator in writing and kept sealed pending his
determination.
The object of subsection 29(3) is to protect the claimant and
his family from danger arising from publicity given to his claim
in the country of origin. Stress generated by the presence of the
media is not the "adverse effect" protected against by subsec
tion 29(3). Although medical evidence showing that the claim
ant's life or health would be seriously endangered by a public
hearing could not be introduced before an adjudicator under
section 29, such remedy might be sought under Charter, section
24 before a court of competent jurisdiction.
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. 2(b), 24.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, ss. 3(f), 29(3) (as
am. by R.S.C., 1985 (1st Supp.), c. 31, s. 99), 32 (as
am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 5; (4th
Supp.), c. 28, ss. 11, 36), 45 (as am. by R.S.C., 1985
(4th Supp.), c. 28, s. 14), 46.02 (as enacted idem.), 70
(as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 8; (4th
Supp.), c. 28, ss. 18, 35; c. 29, s. 6), 99, 103 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 27), 112.
Inquiries Act, R.S.C., 1985, c. I-11.
Unemployment Insurance Act, R.S.C., 1985, c. U-1.
CASES JUDICIALLY CONSIDERED
APPLIED:
Pacific Press Ltd. v. Canada (Minister of Employment
and Immigration), [1991] 2 F.C. 327 (C.A.).
DISTINGUISHED:
Tétreault-Gadoury v. Canada Employment and Immi
gration Commission (1991), 91 CLLC 14,023 (S.C.C.).
CONSIDERED:
Adjei v. Canada (Minister of Employment and Immigra
tion), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153
(C.A.).
COUNSEL:
James H. Gillis and M. Ian Savage for
applicants.
Myra J. Yuzak for Minister of Employment
and Immigration and Attorney General of
Canada.
William J. Wardell for Lyle Moffatt.
SOLICITORS:
MacDermid Lamarsh, Saskatoon, Saskatche-
wan, for applicants.
Deputy Attorney General of Canada for Min
ister of Employment and Immigration and
Attorney General of Canada.
Wardell & Worme, Saskatoon, Saskatche-
wan, for Lyle Moffatt.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application seeks to
review and set aside a decision by an Adjudicator
presiding at an inquiry under the Immigration Act
[R.S.C., 1985, c. I-2]. The subject of the inquiry
was one Ziatden Boughanmi who had been
charged with homicide and acquitted on grounds
of insanity in October of 1990. At the time the
inquiry commenced and today Mr. Boughanmi
was and is detained on a Lieutenant Governor's
Warrant in the Regional Psychiatric Centre in
Saskatoon, a maximum security facility. By the
decision under attack the adjudicator purported to
apply subsection 29(3) [as am. by R.S.C., 1985
(1st Supp.), c. 31, s. 99] of the Immigration Act'
and to exclude members of the press and public
who wished to be present at the inquiry. The
applicants, representatives of the media, are
among those excluded.
The Adjudicator's decision was given on March
6, 1991 prior to the delivery of the judgment of
this Court in McVey. 2 In McVey, the Court held
subsection 29(3) to be invalid and contrary to
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]]. The Court, however, suspended the
operation of the McVey decision for one year "to
preserve the rule of the law in this area". The
Court also commented on the interpretation of
subsection 29(3), and those comments, as well as
the Charter ruling, were not, of course, available
to the Adjudicator in this case. It is quite clear
that the decision under attack cannot be reconciled
with McVey.
A threshold question as to the power of the
adjudicator to decide Charter issues and, conse
quently, the power of this Court to review those
decisions, arises as a result of the recent judgment
of the Supreme Court of Canada in Tétreault-
Gadoury. 3 In that case the Supreme Court found
that the Board of Referees, established pursuant to
the Unemployment Insurance Act [R.S.C., 1985,
c. U-1], did not have jurisdiction to determine a
Charter issue and that, as a result, this Court also
lacked jurisdiction to determine the constitutional
' 29....
(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.
2 Pacific Press Ltd. v. Canada (Minister of Employment and
Immigration), [1991] 2 F.C. 327 (C.A.), hereinafter "McVey".
3 Tétreault-Gadoury v. Canada Employment and Immigra
tion Commission (1991), 91 CLLC 14,023 (S.C.C.), herein-
after "Tétreault-Gadoury".
question in section 28 proceedings taken directly
against the Board of Referees.
The issue, thus, is whether an adjudicator under
the Immigration Act falls into that category of
administrative tribunal which, having power to
determine questions of law, should be found to be
competent to apply the supreme law of the land, at
least to the extent of determining whether or not
some other legislative provision is inconsistent with
it and therefore of no force or effect.
The Immigration Act gives to the adjudicator
extensive powers to decide important questions of
law and of fact. Specific reference may be made to
section 32 [as am. by R.S.C., 1985 (3rd Supp.), c.
30, s. 5; (4th Supp.), c. 28, ss. 11, 36] (decisions as
to who shall be permitted to remain in the country
and, if not permitted, as to how and when they
should be obliged to leave), section 46.02 [as
enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14]
(decisions as to who is eligible to make a refugee
claim and, if eligible, as to whether such claim has
a credible basis) and section 103 [as am. idem, s.
27] (decisions as to detention) but there are many
others as well. Indeed the very decision here under
attack is specifically required to be made by the
adjudicator and raises important issues of publicity
of hearings, freedom of the press and fundamental
justice. In addition the adjudicator is, by section
45 [as am. idem, s. 14], the presiding officer at the
first stage or screening inquiry for all refugee
claimants. It is not without significance that the
other member of the tribunal over which the
adjudicator presides is a member of the Immigra
tion and Refugee Board. The adjudicator is also
vested by section 112 with all the powers of a
commissioner under Part I of the Inquiries Act
[R.S.C., 1985, c. I-11].
Many of the decisions which an adjudicator is
called upon to make, alone or together with a
member of the Board, are of critical importance to
the persons concerned and can have significant
impact on rights which are protected and guaran
teed by the Charter. Indeed, all decisions relating
to persons seeking admission to Canada are
specifically required to be made in accordance
with the Charter (see paragraph 3(f)). In those
circumstances, I think that it is reasonable to
conclude that an adjudicator is vested with the
"practical capability" to decide questions of law
including questions touching the application and
supremacy of the Charter.
As I understand the decision in Tétreault-
Gadoury, supra, however, the critical element in
the Court's decision that the Board of Referees
was not empowered to determine Charter issues
was the existence of a right of appeal from the
Board of Referees to the Umpire, a Tribunal
manifestly competent and capable of dealing with
such issues. La Forest J. speaking for the majority
said [at page 14,027]:
... notwithstanding the practical capability of the Board of
Referees, the particular scheme set up by the legislature in the
Unemployment Insurance Act, 1971 contemplates that the
constitutional question should more appropriately have been
presented to the umpire, on appeal, rather than to the Board
itself.
and again [at page 14,028]:
... where, as here, the legislature has provided the litigant with
the possibility of an administrative appeal before a body which
has the power to consider the constitutional arguments, the
need for a determination of the constitutional issue by the
tribunal of original jurisdiction is clearly not as great. In such a
situation, the advantages of dealing with the constitutional
question within the administrative process are still preserved for
the litigant.
The scheme of the Immigration Act is not as
straight-forward as that of the Unemployment In
surance Act in the system of administrative tri
bunals which it establishes. All decisions of the
Board of Referees may be appealed to the Umpire
on questions of law and the latter has full power to
decide such questions. That is not the case with
regard to decisions of the adjudicator. It is true
that section 70 [as am. by R.S.C., 1985 (3rd
Supp.), c. 30, s. 8; (4th Supp.), c. 28, ss. 18, 35; c.
29, s. 6] of the Act gives a right of appeal on
questions of law, and that the Board, to which
such appeals are taken, is a court of record with
both jurisdiction and capability to decide them.
The complicating factor flows from the fact that
an appeal can be had, only against certain, but not
all, removal orders pronounced by an adjudicator;
the existence of the right of appeal depends not so
much on the nature of the order made as on the
status of the person against whom it is made.
Thus, for anyone who has not been granted status
as a permanent resident or a Convention refugee
or who does not hold a valid visa (and such persons
must constitute the vast majority of persons who
are removed from Canada) there is no right of
appeal at all. Equally, when a first-stage tribunal
presided over by an adjudicator makes a decision
unfavourable to a refugee claimant, a decision
whose consequences and possible Charter impact
may be immense, there is no right of appeal.
Detention decisions although limited in duration
are also not subject to appeal. Indeed, decisions
under subsection 29(3), such as the one in issue
here, are themselves not appealable and their
impact on Charter rights needs no demonstration.
As was made manifest by the result in
Tétreault-Gadoury, supra, the fact that any of
these unappealable decisions may be subject to
judicial review under section 28 or otherwise does
not provide a useful remedy to the person who
suffers from the application of an invalid or inop
erative law, since the Court on review is limited by
the powers of the tribunal whose decision is being
reviewed.
Since, as I have already indicated, the adjudica
tor has the practical capability to decide Charter
issues, it is my view that, on the reading of the
whole legislative scheme, there is nothing in the
Immigration Act to indicate any intention to pre
clude him from having and exercising the power to
find a legislative provision inconsistent with the
Charter. Not only does this seem to accord with
the economy of the legislation; any other conclu
sion would result in the wholesale denial of effec
tive Charter remedies. It follows that in my opin
ion we have jurisdiction to determine the Charter
issue raised by these proceedings.
As I have indicated, the Court in McVey, while
finding subsection 29(3) to be inconsistent with
the Charter and therefore inoperative, went on to
suspend the effect of that declaration for one year.
The Court identified the legislative objective of the
provision as being the protection of refugees and
their relatives from the possible consequences of
having the claim and the testimony made public in
the claimant's country of origin. It is clearly the
importance of that objective which moved the
Court to leave subsection 29(3) temporarily in
effect and to give Parliament another chance to
achieve its purpose in a manner compatible with
the Charter.
It remains, however, that the present applicants
enjoy the same Charter rights as the applicants in
McVey and are entitled, on a continuing basis, to
ask the courts to prevent them from being
infringed by the operation of subsection 29(3). No
doubt there will be others similarly situated in the
coming months. It would seem appropriate, there
fore, for us to indicate, on an interim basis, the
extent to which the legislation can continue to
operate and how its application should be modified
in practice so as to give effect as far as possible to
its object while at the same time protecting the
Charter rights which it infringes. This is especially
so in a case such as the present where a refugee
claim has been asserted since, unlike McVey, that
fact clearly engages those interests that have been
identified as underlying the provision.
In the first place, I think it clear that the reverse
onus provision of subsection 29(3), with its impos
sible standard of proof, cannot survive, even tem
porarily. The general rule for all courts and quasi-
judicial bodies is that they be open to the public.
The natural corollary of that rule is that anyone
seeking to have a hearing conducted in camera
must satisfy the presiding officer that the circum
stances are such as to justify departing from it.
Second, given the identified object of the legisla
tion, I think that what must be demonstrated is the
likelihood that the claimant or a member of his
family would be in danger of life, liberty or secu
rity of the person if the hearing were held in public
and the details became known in his country of
origin.
The standard of proof need not be high, how
ever. Since the request to close the hearing can
only take place in the context of a refugee claim,
actual or anticipated, it would seem appropriate to
apply the same test as for the claim itself. In
Adjei, 4 this Court identified that test as being the
existence of a "reasonable chance" or "good
grounds" to fear danger. As in other proceedings
before him, the adjudicator may base his opinion
on any sources of information which he finds to be
credible and trustworthy.
Next there is the difficult question of the pub
licity of the very proceeding in which it is deter
mined whether or not the hearing is to be open to
the public. There will be some circumstances in
which the mere fact of asserting danger to the
claimant and his family will itself be a source of
danger. I do not think this possibility should be
overrated for, as the Court indicated in McVey,
thousands of refugee claimants address themselves
publicly and openly to this Court each year with
out apparently undue fear of the consequences.
That said, however, the danger may be there and
the problem must be faced. The Court in McVey
commented on the adjudicator's lack of power to
make an order prohibiting publication of some or
all of the proceedings. I think, however, that with a
little ingenuity other means may be found of pro
tecting truly sensitive information. Persons present
at the hearing could be required to give an under
taking (perhaps in writing) not to reveal certain
information unless and until it was determined
that the hearing should be open. As well, or alter
natively, some information could be given to the
adjudicator in writing and kept sealed from the
public eye pending such determination. There may
be other possibilities as well.
Finally, I should say a word about the reasons
assigned by the Adjudicator in the present case for
refusing access to the inquiry. He said:
The concerns that I have are that Immigration proceedings
themselves can prove to be very stressful upon an individual.
° Adjei v. Canada (Minister of Employment and Immigra
tion), [1989] 2 F.C. 680 (C.A.).
The Immigration Act sets out that there are two conditions
upon which the Adjudicator could exclude observers. The first
one is that conduct of the inquiry in public would not impede
the inquiry, and in this case, I don't believe that the presence of
the individual members of the media would impede the inquiry,
as such, but it doesn't stop there. I must also look at the second
part, that the person with respect to whom the inquiry is to be
held or any members of that person's family would not be
adversely effected [sic] if the inquiry were to be conducted in
public, and in this case, I think I can deal directly with the
person concerned himself, that because of the nature of the
institution that he is in, and because of the fact that although
it's been limited, I have heard that he is undergoing treatment,
and because I am satisfied that an Immigration inquiry could,
under conditions, prove to be stressful on the individual, and
could exasperate [sic] his medical condition or his psychiatric
condition, whatever that may be, and in the interests of the
person concerned, and because I feel that by the presence of
observers, members of the media, which he is opposed to, that
he may, in fact, be adversely effected [sic] if the members of
the media were allowed to remain, and for that reason, gentle
men, I'm going to have to exclude you from the proceedings.
That reasoning clearly cannot stand in the face
of McVey, where MacGuigan J.A. speaking for
the Court said [at page 352]:
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.
I am in full agreement with that statement
which follows logically from the identified object
of subsection 29(3), namely the protection of the
claimant and his family from danger arising from
publicity given to the claim in the country of
origin. I would not however want to exclude the
possibility, perhaps remote, that a claimant might
introduce medical evidence to show that his life or
health would be seriously endangered by a public
hearing. Such a situation would be quite outside
the legislative scheme of section 29 and beyond the
powers of the adjudicator; the remedy, if any,
would be under section 24 of the Charter and
could only be given by a court of competent
jurisdiction.
For these reasons I would allow the section 28
application, set aside the Adjudicator's decision
and remit the matter to the Adjudicator to be
decided in a manner not inconsistent with these
reasons.
STONE 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.