A-249-74
Attorney General of Canada and Minister of
Manpower and Immigration (Appellants)
v.
Thomas Overton Jolly (Respondent)
Court of Appeal, Thurlow and Ryan JJ. and Shep-
pard D.J.—Vancouver, January 27, 28 and 29;
Ottawa, February 13, 1975.
Judicial review—Immigration—Deportation order—For-
bidden classes of persons—Association with Black Panther
Party—Whether "reasonable grounds for believing" Party
subversive—Immigration Act, R.S.C. 1970, c. I-2, ss. 5, 22,
26—Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30—
Canadian Bill of Rights, S.C. 1960, c. 44, (R.S.C. 1970, App.
III)—Federal Court Act, s. 28.
The respondent entered Canada as a non-immigrant visitor
from the United States and applied for permanent residence.
Pursuant to a section 22 report, a special inquiry was held and
an order was made for the deportation of the respondent, as a
member of the prohibited class of persons set forth in section
5(l) of the Immigration Act, in that he was associated with the
Black Panther Party, an organization advocating subversion by
force. An appeal from the deportation order was allowed by the
Immigration Appeal Board. The Minister appealed from that
decision and also brought a section 28 application to review and
have it set aside. The respondent cross-appealed, but at the
hearing he was unable to suggest any variation that he sought
in the judgment.
Held, allowing the appeal, the matter should be referred
back to the Immigration Appeal Board for rehearing. The
cross-appeal should be dismissed. The statutory rule of evidence
in section 26(3) of the Immigration Act authorized the Special
Inquiry Officer to receive "evidence considered credible or
trustworthy by him in the circumstances of each case." The
Board was entitled to found its judgment on a document, if it
considered its contents to be credible and trustworthy in the
circumstances. But if the Board treated a document as worth
less, because its contents were not proved in accordance with
the rules of evidence in civil actions, the Board's rejection of the
document was erroneous in law. The question under section
5(l) was not whether the body in question was in fact a
subversive organization, but whether there were "reasonable
grounds for believing" that it was such an organization. Even
after prima facie evidence had been given by the respondent
negativing the fact, it was only necessary for the Minister to
show the existence of reasonable grounds for believing the fact.
It was unnecessary for him to go further and establish the fact
itself of the subversive character of the organization. The
failure to recognize this standard of proof invalidated the
Board's decision. The respondent's further contention that sec
tion 5(1) was rendered inoperative, as infringing the rights to
freedom of association, freedom of speech and freedom of the
press, as protected by the Canadian Bill of Rights, was without
substance. The respondent, as an alien, had no right to be in
Canada save in so far as was permitted by the Immigration
Act. Section 5(l) of that Act simply defined a class of aliens not
permitted to remain in Canada. It imposed no penalty upon,
and infringed no right of, any such alien.
Prata v. Minister of Manpower and Immigration (1975)
52 D.L.R. (3d) 383, followed.
JUDICIAL review and appeal.
COUNCEL:
N. D. Mullins, Q.C., for appellant.
R. N. Stern for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Shrum, Liddle and Hebenton, Vancouver, for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW J.: This is an appeal from a decision
of the Immigration Appeal Board which allowed
the respondent's appeal against an order for his
deportation made by a Special Inquiry Officer
under the Immigration Act on August 9, 1972.
There is also an application by the appellant under
section 28 of the Federal Court Act to review and
set aside the same decision and a cross-appeal by
the respondent. However, at the argument counsel
for the respondent was unable to suggest any
variation that he sought in the judgment.
The respondent had entered Canada as a non-
immigrant visitor from the United States in May
1971 and while in Canada had applied for perma
nent residence. A report under section 22 was
made and following a special inquiry an order of
deportation was made stating inter alia that:
you are a member of the prohibited class of persons described
in paragraph 5(l) of the Immigration Act in that you are a
person who was associated with an organization, namely, the
Black Panther Party, which at the time of such association
advocated subversion by force of democratic government, insti
tutions or processes as they are understood in Canada and you
have not satisfied the Minister that you have ceased to be
associated with such organization and your admission would
not be detrimental to the security of Canada,
On this appeal no issue arises as to the respond
ent having been associated with the organization
or body known as the Black Panther Party in the
United States from some time in 1968 until he
came to Canada in 1971. The issue is whether the
Board erred in law in failing to find that the Black
Panther Party was an organization, group or body
of the kind referred to in subsection 5(1) of the
Immigration Act. That subsection reads as follows:
5. No person, other than a person referred to in subsection
7(2), shall be admitted to Canada if he is a member of any of
the following classes of persons:
(1) persons who are or have been, at any time before, on or
after the 1st day of June 1953, members of or associated with
any organization, group or body of any kind concerning
which there are reasonable grounds for believing that it
promotes or advocates or at the time of such membership or
association promoted or advocated subversion by force or
other means of democratic government, institutions or pro
cesses, as they are understood in Canada, except persons who
satisfy the Minister that they have ceased to be members of
or associated with such organizations, groups or bodies and
whose admission would not be detrimental to the security of
Canada;
It will be observed that what the Special Inquiry
Officer found was not precisely what subsection
5(l) required. The subsection refers to "reasonable
grounds for believing", etc. The Special Inquiry
Officer went further and found that the Black
Panther Party was in fact, at the time of the
respondent's association with it, an organization
which advocated subversion by force, etc.
The appeal to this Court was based on two
alleged errors of law, viz., (1) that the Board
rejected as inadmissible, evidence which had been
received by the Special Inquiry Officer and which
tended to show the subversive character of the
Black Panther Party; and (2) that the Board mis
directed itself and decided the wrong question by
finding that the Black Panther Party was not in
fact a subversive organization instead of directing
its inquiry to and deciding whether there were
"reasonable grounds for believing" that the Black
Panther Party was a subversive organization of the
kind referred to in subsection 5(1).
The material before the Special Inquiry Officer
consisted of the evidence given on the examination
of the respondent and the evidence of Dr. Kenneth
O'Brien, an assistant professor of Social Sciences
at Simon Fraser University, together with inter
alia Exhibits "G" and "H". The only additional
evidence put before the Immigration Appeal Board
on the appeal to it consisted of three affidavits, one
made by an attorney-at-law expressing opinions as
to fundamental rights, another made by a member
of the Black Panther Party, and another by an
attorney-at-law who acted as counsel to that
organization. These were tendered on behalf of the
respondent and were received by the Board.
It is the manner in which the Board dealt with
Exhibits "G" and "H" which forms the basis of
the first of the appellant's submissions.
Exhibit "G" is a copy of the issue of September
7th, 1968 of what purports to be a bi -weekly
newspaper entitled The Black Panther. Exhibit
"H" is a copy of a volume entitled:
RIOTS, CIVIL AND CRIMINAL DISORDERS
HEARINGS
before the
PERMANENT
SUBCOMMITTEE ON INVESTIGATIONS
of the
COMMITTEE ON
GOVERNMENT OPERATIONS
UNITED STATES SENATE
Ninety-First Congress
FIRST SESSION
PURSUANT TO SENATE RESOLUTION 26, 91ST CONGRESS
PART 19
Printed for the use of the Committee on Government
Operations
Part of this volume is concerned with the Black
Panther Party.
The Board after quoting extensively from the
evidence of the respondent and Dr. O'Brien said:
This evidence, if uncontradicted, is sufficient to establish that
the Black Panther Party as a party was not an organization
which advocated subversion by force, shifting the burden to the
Special Inquiry Officer to prove that it was, and Mr. Mullins,
as counsel for the Special Inquiry Officer, endeavoured to do
so. In particular, he filed two publications, and examined Mr.
Jolly, and cross-examined Dr. O'Brien at length in respect of
certain portions of them.
The Board next proceeded to consider the two
exhibits "G" and "H", the discussion of "H"
covering some six pages of its reasons and that
concerning exhibit "G" covering some four pages.
With respect to exhibit "H" the Board said,
inter alia,
It is apparently printed by the United States Government
Printing Office and runs from page 3721 to page 4159, plus an
appendix. It is apparently part of a set of volumes, and accord
ing to Mr. Mullins, contains, though not exclusively, a tran
script of the hearings before the Committee respecting the
Black Panther Party. At the inquiry, Mr. Jolly's counsel object
ed strenuously to the admission of this publication, on the
ground that it was not identified as a congressional committee
report. He was overruled. At the appeal, Mr. Stern argued to
the same effect.....
It would appear that Mr. Stern was suggesting that Exhibit
"H" was inadmissible since there was no certification that it
was a true and accurate transcript of the hearing before the
Senate Committee. Mr. Mullins countered this by referring to
section 26(3) of the Immigration Act:
(3) The Special Inquiry Officer may at the hearing receive
and base his decision upon evidence considered credible or
trustworthy by him in the circumstances of each case.
In Trefeissen v. Minister of Manpower and Immigration
(1975) 8 I.A.C. 69, "evidence" in support of a ground set out in
the deporation order was a letter setting out certain alleged
facts which were denied by the subject of the inquiry. This
Court set aside this ground of the deportation order on the basis
that the letter was documentary hearsay, thus "inadmissible as
evidence, and, having been admitted, proved nothing" (page
48). Mr. Mullins while agreeing with the ratio decidendi in
Trefeissen, to which we will return, took exception to the
statement above quoted, pointing out that if the Special Inquiry
Officer were restricted to the ordinary rules of evidence as to
admissibility prevailing in a court of law, section 26(3) of the
Immigration Act would be unnecessary. In his view, the word
"evidence" in the subsection must "mean information material,
or what have you, considered credible or trustworthy by him."
As to admissibility, I think this is right. Trefeissen and Pareja
may be too widely stated in this regard. Admission of "evi-
dence" by a Special Inquiry Officer which would not be
admissible in a court of law does not vitiate the inquiry. The
question of the weight to be given to such "evidence" is,
however, a different question, and this brings us to a far more
fundamental objection to Exhibit "H" than the fact that it was
not certified, and this is that its contents cannot be accepted in
this court as proof of anything.
An examination of Exhibit "H" indicates that a number of
witnesses testified, some of them under oath, before a "Senate
Sub-Committee on Investigations" under the Chairmanship of
Senator McLellan of Arkansas. From its very name the sub
committee was clearly investigating. Few, if any, judicial safe
guards were applied to the proceedings, not unnaturally since
they were in no sense judicial in nature. It is unclear whether
the hearings were open to the public, although the alleged
transcript thereof, Exhibit "H", appears to be available to the
public, for the sum of $2.50 and is, according to Mr. Mullins,
to be found in the Vancouver Public Library. But none of its
contents can be accepted in this appeal as proof that the Black
Panther Party advocated subversion, or as proof of anything
respecting the Black Panther Party.
Now we do not know the "public authority" if any, under
which the Senate Sub-Committee conducted its investigation.
We may assume, but do not know, that the subjects of their
investigation, the Black Panther Party among others, are mat
ters of public concern. But most cogent of all, there is no
evidence that the Committee ever made a report, a finding on
any relevant allegation in respect of the Black Panther Party.
No such report is indicated in Exhibit "H". Mr. Mullins, when
asked, stated that he had no knowledge whether any recom
mendations were ever made by the Sub-Committee. Reference
may also be made to section 30(10)(a)(i) and section 30(11) of
the Canada Evidence Act, R.S.C. 1970, c. E-10.
In the instant appeal, of course, it was never contended that
the appellant Jolly testified before the Senate Sub-Committee,
nor did he. An examination of Exhibit "H" discloses that no
member of the Black Panther Party testified, except two dis
gruntled alleged ex-members of the party. No evidence was
adduced as to the appointment or authority of the Sub-Com
mittee, which was in any event a committee of a foreign state.
Mazerall cannot be used as authority for the admission of
Exhibit "H" as evidence of anything relevant to this appeal; it
has no value in these proceedings and its contents cannot be
considered.
... Martin was followed in Gee v. Freeman (1958) 26 W.W.R.
546, 16 D.L.R. (2nd) 65 (B.C.) and we find at page 76:
I think that the judgments in Martin v. Law Society of
B.C. [1950] 3 D.L.R. 173, make it clear that I may take
judicial notice of what adherence to Communism involves.
This Court accepted the same proposition in Cronan. This is
evidently the high water mark of judicial notice, which is
defined in Phipson supra, para. 10, as "the cognizance taken by
the court itself of certain matters which are so notorious, or
clearly established, that evidence of their existence is deemed
unnecessary". He goes on to point out that judges may use their
general knowledge of common affairs but may not act on
private knowledge or belief. It may well be that when Martin
was decided, the nature of Communism was so notorious that a
Court could take judicial notice of it, furthermore, the date of
the case is significant (it was heard by the Court of Appeal on
April 20, 1950) and the element of control by a foreign power,
the smell of treason, was obviously not very far from the minds
of the learned judges. None of these elements is present in the
instant appeal. Even if the allegations before the Sub-Commit
tee had been proved in a court of law, in another case, this
court could not take judicial notice of them (Lazard v. Midland
Bank [1933] A.C. 289).
Exhibit "H", then, is totally worthless as evidence. None of
Mr. Jolly's or Dr. O'Brien's testimony at the Inquiry which was
extensive, can be said to be such as to render Exhibit "H" or
any part thereof acceptable evidence for consideration at this
appeal.
It will be observed that the Board did not reject
Exhibit "H" as inadmissible but in substance
treated its contents as unacceptable for reasons
which render such documents inadmissible under
the rules of evidence which prevail in other kinds
of legal proceedings. Such reasons undoubtedly
have a bearing on the weight to be attributed to
documents when admissible under a special rule
such as is enacted by subsection 26(3) of the
Immigration Act. That subsection authorizes the
Special Inquiry Officer to receive and base his
decision "upon evidence considered credible or
trustworthy by him in the circumstances of each
case" and it is apparent both from his having
admitted Exhibit "H" and from his conclusion in
the circumstances that the Special Inquiry Officer
regarded it as credible and trustworthy within the
meaning of the subsection.
However, when the matter came before the
Board on appeal it was for the Board to consider
and reach its own conclusion as to whether the
document was evidence that was "credible and
trustworthy in the circumstances of [the] case"
and if so to give it such weight as in the circum
stances it appeared to the Board to deserve. I think
it is apparent from the excerpts which I have cited
from the Board's reasons that the Board did not
regard the contents of Exhibit "H" as credible or
trustworthy or deserving of weight as proof of the
subversive character of the Black Panther Party
and while I think it is unfortunate that the Board
in several places expressed its reasons in terms of a
rule of admissibility rather than in terms of the
credibility and trustworthiness of the particular
document in the circumstances of the particular
case I do not think its conclusion that the docu
ment was worthless as evidence can on that
account be regarded as erroneous in law. Its credi
bility, its trustworthiness, its cogency, the infer
ences to be drawn from it, were all questions of
fact that were peculiarly within the Board's juris
diction to determine. Those are the questions to
which, as it seems to me, the Board was giving
consideration and its conclusions on them, for
whatever reasons appeared to them to be valid,
and whether such reasons or any or all of them
appear to the Court as persuasive, are not subject
to review on an appeal that is limited to questions
of law.
On the other hand the Board was entitled to
found its judgment on the material in the exhibit if
it considered what was in it to be credible and
trustworthy in the circumstances and if by the use
of expressions such as "cannot be accepted in this
Court as proof of anything", "none of its contents
can be accepted in this appeal as proof that the
Black Panther Party advocated subversion, or as
proof of anything respecting the Black Panther
Party", and "its contents cannot be considered",
the Board intended to imply that the exhibit could
not, as a matter of law, be founded upon because
its contents were not proven in accordance with the
rules of evidence in civil actions rather than
because the Board in its judgment did not regard
its contents as credible or trustworthy in the cir
cumstances of the particular case, I am, with
respect, of the opinion that the Board's rejection of
the document as evidence was erroneous in law.
With respect to Exhibit "G" the Board said
inter alia:
We turn now to the other publication filed by Mr. Mullins at
the Inquiry, Exhibit "G", on which he relied much more
heavily at the inquiry and on appeal. Again this document was
admissible pursuant to section 26(3) of the Immigration Act,
but Mr. Stern argued that there was no evidence "what author
ity the publisher had to represent the views of the Black
Panther Party, if any, nor was there any identification of the
editor or the editorial and news staff of the paper" and no proof
that the newspaper "was a true copy of what it pretended to
be".
It was never very seriously argued that the paper was not
what it purported to be, namely one issue of "The Black
Panther".
Now, whether the paper was the "official organ" of the
Black Panther Party was never proved. Exhibit "G", however,
does show as its Editorial Staff certain persons who were
prominent members of the Party, including the founder. Mr.
Mullins argued quite strenuously that statements by or the
attitude of the leaders of the Party might be taken as indication
of party policy and that the persons named and certain others,
including George Murray, Minister of Education, who is shown
as author of an article on page 12 of Exhibit "G", were
"leaders" of the Black Panther Party. There is no evidence as
to how they were leaders, whether they were appointed, elected,
or self-styled. There is no evidence as to the structure of the
Party, whether it was closely or loosely organized, subject to
discipline or not, whether it was united in its aims or split by
such dissention that it could never as a party be said to have
any consistent aims except the ten point program, which Dr.
O'Brien testified has never changed. When asked, (page 93):
Q. Have you read statements of the leaders in terms of the
policy of the Party?
A. Yes I have, although it is more difficult in the case of the
Black Panther Party as a whole, looked over a period of
time, this is very difficult, in other words to take state
ments of leaders, individual leaders, since there has been
a great deal of change over time.
It has already been seen that this one issue of a newspaper said
to be published biweekly is not very satisfactory evidence of
what the policy of the Black Panther Party, as a Party, actually
was: does it prove on balance of probabilities that the Black
Panther Party advocated, as a consistent and continuing policy,
subversion of democratic processes, etc., as they are understood
in Canada? It may be remembered that advocate means public
ly recommend, encourage. We have no proof of the circulation
of the paper, though from Mr. Jolly, we know that it was
distributed. So there must have been some communication with
the public, and presumably more than one issue of the paper
was published.
I do not propose to deal with Exhibit "G" in detail. Some
articles in it are written in a kind of jargonese of violence,
hatred and racial bias; whether they amount to advocacy of
subversion by the respective authors, it is unnecessary to deter
mine. There seems to be an obsession for firearms. The police
and others are portrayed as pigs. Some articles, incidentally,
the most intelligible, are perfectly sane, for example almost a
full page (p. 15) is devoted to unexceptional advice on what to
do if arrested. It is headed Pocket Lawyer Legal First Aid. As a
whole, it is a rather pathetic publication, badly written and
worse printed.
It must be held that at the inquiry the Minister failed to
satisfy the burden on him of proving that the Black Panther
Party, at the time Mr. Jolly was associated with it, advocated
subversion within the meaning of section 5(1).
It appears to me that what emerges from these
excerpts is that the Board while regarding Exhibit
"G" as evidence did not regard the articles in it,
purporting to have been authored by persons pur
porting to be leaders, as credible or trustworthy
evidence that the Black Panther Party was an
organization that advocated subversion. In this
case the Board did not go so far as to say that the
Exhibit was entirely worthless as evidence, as it
did in the case of Exhibit "H". On the other hand
the Board did not say precisely how much weight,
if any, was to be attributed to it. The nearest the
Board comes to this is the point where it made the
telling observation that "this one issue of a news
paper said to be published biweekly is not very
satisfactory evidence of what the policy of the
Black Panther Party, as a party, actually was."
After saying this the Board proceeded to conclude
that Exhibit "G" and the other evidence was insuf
ficient to justify, on balance of probabilities, a
conclusion that the Black Panther Party advocat
ed, (I take it either as a consistent and continuing
policy or sporadically) subversion within the mean
ing of subsection 5(1). I think it is plain that the
Board did not reject the evidence as inadmissible
but dealt only with the weight, or lack of it, to be
attributed to it.
This brings me to the appellant's second submis
sion, that the Board erred in answering the wrong
question and not determining the question that is
posed by subsection 5(1). It appears to me to be
implicit in a finding that an organization in fact
advocated subversion by force, etc., as the Special
Inquiry Officer found, that there must be reason
able grounds for believing that it was such an
organization. Conversely, a finding that, on the
evidence before the Board, on balance of probabili
ties the Black Panther Party was not an organiza
tion that at the material times advocated subver
sion by force, etc., in my opinion, implies that on
balance there are not reasonable grounds for
believing the Party to have been such an organiza
tion. But where the fact to be ascertained on the
evidence is whether there are reasonable grounds
for such a belief, rather than the existence of the
fact itself, it seems to me that to require proof of
the fact itself and proceed to determine whether it
has been established is to demand the proof of a
different fact from that required to be ascertained.
It seems to me that the use by the statute of the
expression "reasonable grounds for believing"
implies that the fact itself need not be established
and that evidence which falls short of proving the
subversive character of the organization will be
sufficient if it is enough to show reasonable
grounds for believing that the organization is one
that advocates subversion by force, etc. In a close
case the failure to observe this distinction and to
resolve the precise question dictated by the statu
tory wording can account for a difference in the
result of an inquiry or an appeal.
In the present case, in my opinion, the evidence
was by no means such as to lead inevitably to the
Board's conclusion. The respondent's evidence was
that of a witness having personal knowledge but
some of his answers relating to the location of his
residence and that of the office of the party tend to
weaken his credibility. Moreover, while he gave
evidence that he was actively associated with the
party and some of its activities he said on at least
three occasions that he was not a member of it,
which may account for his lack of knowledge on
questions of policy. The evidence of Dr. O'Brien is
not that of one with personal knowledge or experi
ence, but it indicates that the recent more temper
ate stance of the party is in contrast with the more
violent and radical earlier stance. The evidence of
Joudan Ford and Charles R. Garry was given by
affidavit and there was no opportunity for cross-
examination, though it is fair to observe that none
was demanded. As against this were Exhibits "G"
and "H", "G" having been proved to be an issue of
a publication distributed by members of the Party
including the respondent himself, and both docu
ments being subject to what was pointed out by the
Board as their weakness as evidence of the charac
ter of the Black Panther Party. On the other hand
no mention is made in the Board's reasons of the
weight that the mere existence of such publications
might have as showing "reasonable grounds for
believing" that the Black Panther Party advocated
subversion by force, etc. On the whole I do not
think it can be said that the result was inevitable
or that the Board could not or might not have
concluded on the evidence that there were reason
able grounds for believing that the body known as
the Black Panther Party at the material times
advocated subversion by force, etc., had the Board
addressed its attention to that issue rather than to
the question whether the body in fact advocated
subversion by force, etc.
In the course of its reasons after citing subsec
tion 5(l) and finding that the respondent had been
associated with the Black Panther Party, the
Board said:
The sole question of fact which is in issue in this appeal is
therefore whether at the time Mr. Jolly was associated with it,
the Black Panther Party was an "organization, group or body"
concerning which there are reasonable grounds to believe that it
"advocated subversion by force of democratic government,
institutions or processes as they are understood in Canada" as
set out in s. 5(1) of the Immigration Act.
Subsection 5(l) refers to subversion by other
means as well as to subversion by force, but no
exception is taken on that account to the foregoing
as a correct statement of the issue in the present
case.
Later the Board said:
Before entering into our analysis of the evidence adduced in
the case under appeal, we must examine the nature of the proof
which must be made, and the burden of proof. As Mr. Mullins
pointed out, section 5(1) does not refer to an organization, etc.,
which advocated subversion, but to an organization "concern-
ing which there are reasonable grounds for believing that it ...
advocated subversion". In my view this clause simply sets out
the standard of proof: civil proof on the balance of probabilities,
rather than proof beyond a reasonable doubt, even if the
alleged subversion would be a crime by Canadian law.
Initially, the burden of proof that he is not prohibited lies on
the person seeking admission: section 26(4) of the Immigration
Act:
26. (4) Where an inquiry relates to a person seeking to
come into Canada, the burden of proving that he is not
prohibited from coming into Canada rests upon him.
It must be remembered that Mr. Jolly, in seeking landed
immigrant status from within Canada, was a person seeking to
come into Canada, a phrase which is wider than, but includes
"seeking admission" (Turpin v. M. of Manpower and Immigra
tion (1974) 6 I.A.C. 1). Mr. Jolly thus had the initial burden of
proving that he did not come within section 5(1), i.e. that he
had not been associated with an organization which advocated
subversion by force of democratic government, institutions, or
processes as they are understood in Canada. Since the fact of
association is admitted, Mr. Jolly had to prove that the Black
Panther Party at the time he was associated with it did not
advocate subversion. In our view, he satisfied this burden, thus
shifting the burden of proof to the Minister.
This evidence, if uncontradicted, is sufficient to establish
that the Black Panther Party as a party was not an organiza
tion which advocated subversion by force, shifting the burden
to the Special Inquiry Officer to prove that it was, and Mr.
Mullins, as counsel for the Special Inquiry Officer,
endeavoured to do so. In particular, he filed two publications,
and examined Mr. Jolly, and cross-examined Dr. O'Brien at
length in respect of certain portions of them.
It must be held that at the inquiry the Minister failed to
satisfy the burden on him of proving that the Black Panther
Party, at the time Mr. Jolly was associated with it, advocated
subversion within the meaning of section 5(1).
Reading and re-reading the acceptable evidence given at the
inquiry and at the appeal, it is impossible to determine what the
Black Panther Party, as a party, advocated at the time Mr.
Jolly was associated with it, other than the 10 Point Program.
The Minister had the burden of proof of advocacy of subversion
and he failed to satisfy it. If the Black Panther Party really was
subversive, surely this could have been properly proved in
accordance with the normal standards of civil proof: He who
alleges must prove.
With respect, this, in my opinion, is misdirection.
Subsection 5(1) does not prescribe a standard of
proof but a test to be applied for determining
admissibility of an alien to Canada, and the ques
tion to be decided was whether there were reason
able grounds for believing, etc., and not the fact
itself of advocating subversion by force, etc. No
doubt one way of showing that there are no
reasonable grounds for believing a fact is to show
that the fact itself does not exist. But even when
prima facie evidence negativing the fact itself had
been given by the respondent there did not arise an
onus on the Minister to do more than show that
there were reasonable grounds for believing in the
existence of the fact. In short as applied to this
case it seems to me that even after prima facie
evidence negativing the fact had been given it was
only necessary for the Minister to lead evidence to
show the existence of reasonable grounds for
believing the fact and it was not necessary for him
to go further and establish the fact itself of the
subversive character of the organization. This, in
the circumstances of this case, in my opinion,
invalidates the Board's decision.
Counsel for the respondent, in addition to
endeavouring to meet the appellant's submissions,
also contended that the provision of subsection 5(l)
of the Immigration Act is inoperative because it
infringes the respondent's fundamental rights to
freedom of association, freedom of speech and
freedom of the press as protected by the Canadian
Bill of Rights. In my opinion there is no substance
in this submission. As an alien the respondent has
no right to be or remain in Canada save in so far
as is permitted by the Immigration Act.' Section
5(1) of that act simply defines a class of aliens who
are not to be permitted to enter or remain in
Canada. The Immigration Act is not a penal stat
ute and in my opinion subsection 5(l) imposes no
penalty upon and infringes no right of any such
alien.
I would allow the appeal and refer the matter
back to the Immigration Appeal Board for
re-hearing. I would dismiss the cross-appeal.
* * *
RYAN J. concurred.
* * *
SHEPPARD D.J. concurred.
' See Prata v. Minister of Manpower & Immigration (1975)
52 D.L.R. (3d) 383.
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.