A-648-85
Flora MacDonald, John Crosbie and Simon
Pérusse (Appellants)
v.
Joseph John Kindler (Respondent)
INDEXED AS: KINDLER V. MACDONALD
Court of Appeal, Hugessen, MacGuigan and
Lacombe JJ.—Montréal, May 15; Ottawa, June 3,
1987.
Immigration — Deportation — Decisions under ss. 27 and
28 of Act to hold inquiry not subject to non-oral or `paper"
hearing — Administrative in nature — No unfairness if made
in good faith — Hearing before adjudicator not contravening
Charter s. 7 — Court not to take into account possible
consequences of deportation — Appeal from decision quashing
direction under s. 27 of Act allowed — Immigration Act, 1976,
S.C. 1976, c. 52, ss. 27(3),(4), 28, 30(1), 32(6), 54 — Criminal
Code, R.S.C. 1970, c. C-34 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18 — Sentencing Code, 42 Pa.C.S.A. §
9711(g).
Constitutional law — Charter of Rights — Life, liberty and
security — Decisions under ss. 27 and 28 Immigration Act,
1976 to hold inquiry not depriving respondent of Charter
rights - Inquiry satisfying procedural requirements of funda
mental justice under s. 7 — Opportunity for respondent at
hearing before adjudicator to present case and defend himself
with aid of counsel — Deportation not fundamentally unjust
— Restoring situation existing prior to illegal entry —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 7, 12 — Canadian Bill of Rights, Appendix III,
s. 2(e) — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 27,
28.
The respondent, an American citizen, was sentenced to death
by a United States court, but escaped to Canada before the
sentence was formally pronounced against him. An inquiry was
directed under subsection 27(3) and section 28 of the Immigra
tion Act, 1976. Prior to the date set for the inquiry, the
respondent filed a motion for, inter alia, certiorari quashing the
direction of the Deputy Minister that an inquiry be held before
an adjudicator. This is an appeal against the decision allowing
the motion. The Trial Judge held that the Deputy Minister had
an obligation to afford the respondent a non-oral or "paper"
hearing before issuing a direction under subsection 27(3). He
also found that the procedures for an inquiry under section 28
did not meet the requirements of section 7 of the Charter in
that they do not give the adjudicator the discretion to decide
that a deportation order ought not to be made, having regard to
all the circumstances.
Held, the appeal should be allowed.
The decision of the Deputy Minister under subsection 27(3)
of the Act to issue a direction for an inquiry, or the subsequent
decision of a senior immigration officer under subsection 27(4)
to cause an inquiry to be held, or the parallel decision of such
an officer under section 28 to cause an inquiry to be held are
purely administrative decisions. The senior immigration officer
is merely a conduit through whom the inquiry is caused by
operation of the Act. The Deputy Minister has only to decide
that an inquiry is warranted, which decision he would make on
the existence of a prima facie case. It would be ludicrous to
require even a paper hearing with respect to the decision to
grant a hearing. Provided that the official decisions made are
taken in good faith, they cannot be lacking in fairness. Further
more, the decisions under sections 27 and 28 of the Act do not
deprive the respondent of his life, liberty and security. There
fore, they do not fall under the principle affirmed in Cardinal
that a duty of procedural fairness lies on every public authority
making an administrative decision which is not of a legislative
nature and which affects an individual's rights, privileges or
interests.
The fundamental mistake of the Trial Judge was his miscon
ception of the immigration inquiry. It was the Trial Judge's
belief that the respondent should be allowed, before the
adjudicator, to make the kind of case he could advance on an
extradition hearing. If the factual allegations against the
respondent are true, then the adjudicator has no option but to
order deportation since subsection 32(6) precludes him from
considering special circumstances in a case such as that at issue
here.
The hearing prescribed by the Immigration Act, 1976 for an
inquiry meets the procedural requirements of fundamental
justice under section 7 of the Charter: the respondent is afford
ed an opportunity to present his case on the facts and to
challenge those of the other side, with the aid of counsel. Nor
was there anything fundamentally unjust in a legislative provi
sion requiring the deportation of a person found illegally in the
country. Deportation was an exactly proportionate consequence
of the illegal behaviour since it restored the situation that
existed before the illegal entry.
In a case such as this the Court ought not take into account
other possible consequences of deportation such as the possibili
ty of capital punishment for the respondent. The imposition of
capital punishment lies in the realm of conjecture rather than
fact. As stated by Dickson J. (as he then was) in Operation
Dismantle, "Section 7 of the Charter cannot reasonably be
read as imposing a duty ... to refrain from those acts which
might lead to consequences that deprive ... individuals their
life and security of the person."
CASES JUDICIALLY CONSIDERED
APPLIED:
Cardinal et al. v. Director of Kent Institution, [1985] 2
S.C.R. 643; United States v. Allard, [1987] 1 S.C.R.
564.
DISTINGUISHED:
Harelkin v. University of Regina, [1979] 2 S.C.R. 561.
CONSIDERED:
Martineau v. Matsqui Institution Disciplinary Board,
[ 1980] I S.C.R. 602; Smythe v. The Queen, [1971]
S.C.R. 680; Doyle v. Restrictive Trade Practices Com
mission, [1983] 2 F.C. 867 (C.A.); Re B.C. Motor
Vehicle Act, [1985] 2 S.C.R. 486; Operation Dismantle
Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441;
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; (1985), 58 N.R. 1.
REFERRED TO:
Moore v. Minister of Manpower and Immigration,
[1968] S.C.R. 839; 69 D.L.R. (2d) 273; Minister of
National Revenue v. Coopers and Lybrand, [1979] 1
S.C.R. 495.
COUNSEL:
Suzanne Marcoux-Paquette for appellants.
Julius H. Grey for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Grey, Casgrain, Montréal, for respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: The present appeal raises the
question whether a person who is alleged to be in
Canada without the authorization of law is entitled
to a hearing as to whether he should have a
hearing before an immigration adjudicator.
The respondent is an American citizen who was
convicted of first degree murder, kidnapping and
criminal conspiracy in Pennsylvania in 1983. The
jury recommended the death sentence, but before
the sentence was formally pronounced against him,
he escaped from prison in the United States and
entered Canada, allegedly illegally. Having been
discovered at Ste -Adèle, Quebec, by the RCMP
with the aid of the FBI, he was arrested and
charged with offences under the Immigration Act,
1976 [S.C. 1976-77, c. 52] ("the Act") and the
Criminal Code [R.S.C. 1970, c. C-34]. He was
served with notices of inquiry under both subsec
tion 27(3) and section 28 of the Act, jointly set for
May 15, 1985.
Before the date set for the inquiry, he filed a
motion pursuant to section 18 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10], by
which the Trial Division granted him on July 23,
1985: a writ of certiorari quashing the direction of
the Deputy Minister under subsection 27(3) of the
Act; a writ of prohibition forbidding the holding of
an inquiry as long as the discretion of the Deputy
Minister is not exercised in accordance with the
known principles of procedural fairness; and a
declaration that the words "a person other than a
person described in paragraph 19(1)(c),(d),(e),(f)
or (g) or 27(2)(c),(h) or (i)" in subsection 32(6) of
the Act are of no effect at an inquiry held under
section 28 of the Act [[1985] 1 F.C. 676].
The respondent escaped custody in Canada in
October 1986 and has not been heard from since
that time. Nevertheless, his counsel of record
appeared for him on this appeal.
A principal issue at trial was the question
whether the inquiry proceedings under the Act
constituted a disguised extradition. The Trial
Judge correctly stated the law, as decided by the
Supreme Court of Canada in Moore v. Minister of
Manpower and Immigration, [1968] S.C.R. 839;
69 D.L.R. (2d) 273, and laid this issue to rest with
the following finding on the facts, at page 689:
The proceedings taken under the Immigration Act, 1976 are
valid on their face and I do not believe the evidence is sufficient
to discharge the heavy onus on the petitioner when he chal
lenges these proceedings as a sham aimed at achieving an
unlawful purpose. There were reasonable grounds for the immi
gration authorities to conclude that the petitioner's continued
presence in Canada would not be conducive to the public good.
The mere facts that the R.C.M.P. was unaware of the petition-
er's illegal presence in Canada until alerted by the F.B.I., and
that both forces cooperated in locating him, and that the arrest
was carried out by members of the General Inquiries Section
and not members of the Immigration Branch, are not sufficient
to prove that the Minister did not genuinely consider it in the
public interest to order his deportation. This challenge to the
validity of the deportation proceedings must fail.
On this appeal, then, the only issue is as to the
legality and constitutionality of the decisions under
sections 27 and 28 of the Act respectively to hold
immigration inquiries concerning the respondent.
On this issue the Trial Judge held that the
Deputy Minister had an obligation to afford the
respondent a non-oral or paper hearing before
issuing a direction under subsection 27(3) of the
Act (at page 698):
I therefore conclude that, in view of the administrative
inconvenience which this would create, a trial-type hearing at
this stage of the proceedings would be very difficult to justify.
The petitioner is of course not challenging the charges made
against him, he is seeking to avoid being deported to the United
States. I consider that the ends of justice would be well served
if the petitioner could at least be given a "paper hearing" by
the Deputy Minister as to the serious threat to his "right to
life" which deportation to the United States might represent.
Since the person in authority, the Deputy Minister, has not
observed the principles of procedural fairness in exercising his
discretion, the direction which he gave to a senior immigration
officer under subsection 27(3) is null and void.
I therefore consider that it is right and proper in the circum
stances to issue a writ of certiorari to set aside the direction of
the Deputy Minister and a writ of prohibition to bar the
adjudicator from holding a hearing until the discretion of the
Deputy Minister has been exercised in accordance with recog
nized principles of procedural fairness.
He also held that the procedures set out in the Act
for an inquiry under section 28 of the Act do not
meet the requirements of section 7 of the Canadi-
an Charter of Rights and Freedoms [being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] because they do not
provide an adjudicator discretion to decide that a
deportation order ought not to be made, having
regard to all the circumstances.
It has been settled law in Canada, at least since
Martineau v. Matsqui Institution Disciplinary
Board, [1980] 1 S.C.R. 602, at pages 626-629,
that except for purely legislative decisions, there is
in the words of Dickson J. (as he then was) a
"general duty of fairness resting on all public
decision-makers", but that there is "a flexible
gradation of procedural fairness through the
administrative spectrum". Before the Canadian
Charter of Rights and Freedoms the content of
the duty of fairness at the most purely administra
tive end of the spectrum was therefore minimal.
This, it seems to me, is precisely the kind of
decision in question here. Whether it is the deci
sion of the Deputy Minister under subsection
27(3) to issue a direction for an inquiry to a senior
immigration officer, or the subsequent decision of
a senior immigration officer under subsection
27(4) to cause that inquiry to be held, or the
parallel decision of such an officer under section
28 to cause an inquiry to be held, it is, I believe, a
purely administrative decision. The senior immi
gration officer does not even have to reflect on the
question; he is merely a conduit through whom the
inquiry is caused by operation of the Act. The
Deputy Minister has only to decide that an inquiry
is warranted, which he would do on the existence
of a prima facie case. His decision is analogous to
that of any prosecutor who decides to proceed with
a charge before the courts.
The respondent argued that the prosecutor
analogy fails because the power to prosecute is not
an administrative decision at all but a prerogative
act of the executive, which is subject to different
rules. However, that is not for the most part the
basis on which the courts have held that an Attor
ney General's power to prosecute is in no way
reviewable. In Smythe v. The Queen, [1971]
S.C.R. 680, at pages 685-686, Fauteux C.J.C. said
for the Supreme Court that the provisions of the
Income Tax Act "confer upon the Attorney Gen
eral of Canada the power of deciding, according to
his own judgment and in all cases, the mode of
prosecution for offences", and describes this power
as a "statutory discretion", not a prerogative one.
The decision of this Court in Doyle v. Restrictive
Trade Practices Commission, [1983] 2 F.C. 867,
at page 877, which the respondent cited, rather
supports the appellants' position, since the Court
held that it was not Parliament's intention that the
principles of natural justice and fairness should
apply to the investigation conducted by an inspec
tor under the Canada Corporations Act "who
plays in this investigation a role similar to that of a
Crown prosecutor in a criminal case".
Moreover, the respondent is not helped by the
Supreme Court decision in Harelkin v. University
of Regina, [1979] 2 S.C.R. 561. His argument
that a hearing is rendered unnecessary in adminis
trative proceedings only if there is a subsequent
hearing at which all the issues that could be
canvassed at the first hearing are still open at the
second is not supported by the majority decision,
since it found that the power exercised in that case
was quasi-judicial in nature. In the case at bar, the
decision of the Deputy Minister does not fulfil the
criteria of a decision made on a judicial or quasi-
judicial basis: Minister of National Revenue v.
Coopers and Lybrand, [1979] 1 S.C.R. 495.
What I find most important in this respect is
that the decisions involved are merely decisions
with respect to the respondent, not against him. In
fact, they might be said to be for him, since he is
not only to have a hearing but by subsection 30(1)
of the Act has the right to be represented by
counsel. In other words, it is not a decision to
deprive the respondent of his life, liberty, security
of the person or even of his property, and so does
not fall under the principle that there is "a duty of
procedural fairness lying on every public authority
making an administrative decision which is not of
a legislative nature and which affects the rights,
privileges or interests of an individual", affirmed
by the Supreme Court in Cardinal et al. v. Direc
tor of Kent Institution, [1985] 2 S.C.R. 643, at
page 653 (emphasis added).
In fact, it would to my mind be ludicrous to
require even a paper hearing in such circumstances
with respect to the decision to grant a hearing. If
that were the law, why would there not be a still
earlier hearing with respect to that decision to hold
a hearing, and so on in infinite regression? Pro
vided that the official decisions made are taken in
good faith, I cannot see how they can be lacking in
fairness, and the Trial Judge has found as a fact
that there is no evidence of bad faith.
What seems to me to be the fundamental mis
take of the Trial Judge lies in his misconception of
the immigration inquiry. He says, at pages
703-704:
Do the procedures as set out in the Act provide an adequate
opportunity for the person who is the subject of an inquiry to
state his case and know the case he has to meet? I think not. As
was noted earlier, in the discussion of the legislative framework
of the inquiry process, when the senior immigration officer,
acting under section 28 of the Act, receives notice that a person
is held in detention pursuant to sections 23(3)(a) or 104, he
"shall forthwith cause [an] inquiry to be held concerning that
person". At the inquiry, because the petitioner falls within the
terms of the exception in subsection 32(6), the sole question in
issue before the adjudicator would be whether the petitioner is
a person described in subsection 27(2). Once this has been
determined in the affirmative, he must make a deportation
order against that person—he possesses no discretion under
paragraph 36(2)(a), as he normally would, to decide that a
deportation order ought not to be made against the person,
having regard to all the circumstances of the case. Thus at no
stage in this procedure would the petitioner have the right to
present the special circumstances pertaining in his particular
case before a person having the authority to consider such
circumstances as being relevant to the decision as to whether or
not a deportation order should be made against him. I believe
that, as the inquiry procedure now stands, the petitioner is
denied an adequate opportunity to state his case and, as such, is
denied fundamental justice in the determination as to whether
or not he should be deported.
It is true that the sole question in issue before
the immigration adjudicator at the inquiry would
be whether the factual allegations against the
respondent are true. If they are, the result, depor
tation, must follow, since subsection 32(6) of the'
Act precludes the adjudicator from considering
special circumstances in determining whether to
issue a deportation order in a case such as this. But
in that respect the adjudicator is no different from
many other triers of fact—the judge in a murder
case, for example, who has no option as to impos
ing the penalty of life imprisonment if the facts are
proved. What the adjudicator must do is to scrupu
lously observe fairness in making his decision on
the facts.
The Trial Judge's approach must, I think, have
derived from a belief that the respondent should be
allowed, before the adjudicator, to make the kind
of case he could advance on an extradition hear
ing. But the Trial Judge has already found the
immigration proceedings to be bona fide. That
being so, the respondent must be dealt with by the
Immigration Act, 1976 and not be allowed a back-
door hearing under the Extradition Act [R.S.C.
1970, c. E-21].
The hearing prescribed by the Immigration Act,
1976 for an inquiry in my opinion also meets the
procedural requirements of fundamental justice
under section 7 of the Charter: the respondent
would have a full opportunity to present his case
on the facts and to challenge those of the other
side, all with the aid of counsel. The fact that the
penalty is prescribed, if the respondent is found to
be subject to deportation, in no way lessens the
fairness of the hearing.
Moreover, taking the broader-than-merely-
procedural view of section 7 required by the
Supreme Court's holding in Re B.C. Motor Vehi
cle Act, [1985] 2 S.C.R. 486, at page 512 (per
Lamer J.), that "the principles of fundamental
justice are to be found in the basic tenets and
principles, not only of our judicial process, but also
of the other components of our legal system", I
can find nothing fundamentally unjust in a legisla
tive provision which requires deportation as the
disposition for a person found illegally in the coun-
try. Indeed, such a disposition has always been
regarded as the exactly proportionate consequence
of such illegal behaviour: deportation restores the
situation that existed before the illegal entry.
In my view, our courts should not in a case such
as this take into account other possible conse
quences of deportation, such as the possibility of
capital punishment for the respondent. A similar
issue has just been resolved by the Supreme Court
in United States v. Allard, decided May 14, 1987
[[1987] 1 S.C.R. 564], where the Court held that
section 7 of the Charter did not prevent extradition
to the United States. La Forest J. wrote for the
majority of the Court (at page 572):
The only question that really arises, in this case, is whether
the respondents will face a situation in the United States such
that the mere fact of the Canadian government surrendering
the respondents to the United States authorities for the pur
poses of trial in itself constitutes an infringement on fundamen
tal justice. As I explained in the cases of Schmidt and Mellino,
supra, the mere fact of surrendering, by virtue of a treaty, a
person accused of having committed a crime in another country
for trial in accordance with the ordinary procedures prevailing
in that country, does not in itself amount to an infringement of
fundamental justice, certainly when it has been established
before a Canadian court that the acts charged would constitute
a crime in Canada if it had taken place here. To arrive at the
conclusion that the surrender of the respondents would violate
the principles of fundamental justice, it would be necessary to
establish that the respondents would face a situation that is
simply unacceptable.
Here we are far from a situation that is "simply
unacceptable". It is true that the respondent, if
deported, will under section 54 of the Act
undoubtedly be deported to the United States. It is
also true that he has been convicted of first degree
murder, kidnapping and criminal conspiracy, that
a jury has recommended the imposition of the
death penalty for murder, and that the Pennsyl-
vania Court apparently has no discretion to over
turn a jury's recommendation of the death sen
tence (42 Pa.C.S.A. § 9711(g)). Nevertheless, he
has the right to appeal his conviction to the highest
court in Pennsylvania. If the sentence of capital
punishment were sustained there, he would have
the right to seek executive clemency. The actual
imposition of capital punishment is thus a matter
that lies in the realm of conjecture rather than that
of fact, and as Dickson J. (as he then was) wrote
for the majority of the Supreme Court in Opera
tion Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441, at pages 455-456:
Section 7 of the Charter cannot reasonably be read as imposing
a duty on the government to refrain from those acts which
might lead to consequences that deprive or threaten to deprive
individuals their life and security of the person.
The respondent is not helped by the Supreme
Court decision in Singh et al. v. Minister of
Employment and Immigration, [ 1985] 1 S.C.R.
177; (1985), 58 N.R. 1, because section 7 was
found applicable by three Judges to the refugee
determination process on the basis of a Convention
refugee's right under section 55 of the Act not to
be removed from Canada to a country where his
life or freedom would be threatened. The three
Judges who invoked paragraph 2(e) of the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III] also based their appreciation of the vital
importance of the case to the refugee claimants
upon the same section of the Act. Hence for all six
Judges the result rested upon the substantive right
to a determination process established by Parlia
ment for refugees.
* * *
I do not find it necessary to consider the appel
lants' procedural objections to the relief granted.
As for the respondent's argument based on section
12 of the Charter, that has been adequately dealt
with by the Trial Judge.
In the result, I would allow the appeal, set aside
the order of the Trial Judge, and dismiss the
respondent's application under section 18 of the
Federal Court Act. I would award costs both here
and below to the appellants.
HUGESSEN J.: I agree.
LACOMBE J.: 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.