A-362-88
Mahmoud Mohammad Issa Mohammad (Appel-
lant)
v.
Minister of Employment and Immigration, Minis
ter of State for Immigration and Governor in
Council (Respondents)
INDEXED AS: MOHAMMAD V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (C.A.)
Court of Appeal, Heald, Urie and Mahoney JJ.—
Toronto, October 31, November 1, 2, 3 and 4;
Ottawa, December 8, 1988.
Immigration — Deportation Appeal against Trial Divi
sion decision denying certiorari quashing report under s. 27(1)
of Immigration Act and direction of inquiry under s. 27(3) and
prohibition against Adjudicator from proceeding with inquiry
— Appellant, stateless person, entered Canada using immigra
tion visas issued by Canadian visa officer in Spain Granted
permanent resident status upon entry — Some months later
advised by immigration official Department aware of convic
tion for aircraft hijacking in Greece — Given option to get out
or face deportation proceedings — Given until certain date to
depart but notice of inquiry issued before deadline due to
media pressure Deportation inquiry continuing at time of
appeal — Appeal dismissed Immigration officer authoriz
ing s. 27(1) report not required to have information as to
whether appellant had satisfied Governor in Council as to
rehabilitation Exemption under s. 19(1)(c) describing class
not admitted — Class not narrowed by provision — Initiation
of s. 27(1) report and s. 27(3) direction for inquiry requiring
minimal procedural formalities as administrative decision —
Person concerned need not be given opportunity to answer
allegations in report — Appellant's ability to apply for exer
cise of Governor in Council's prerogative continuing —
Adjudicators under Act meeting test of judicial independence
in reasonably informed person's view.
Judicial review Prerogative writs — Report under s.
27(1) of Immigration Act and direction for inquiry under s.
27(3) — Trial judge denying certiorari, prohibition Appel
lant, stateless person, entered Canada using immigration visas
issued in Spain Permanent residence status granted —
Subsequently advised officials aware of aircraft hijacking
conviction in Greece Appellant given choice of leaving
voluntarily or facing deportation proceedings — Given until
certain date to leave but inquiry notice issued before date due
to media pressure — Proceedings continuing at time of appeal
of Trial Division's decision — Immigration officer having
jurisdiction to authorize and issue s. 27(1) report and s. 27(3)
direction of inquiry — Not required to have information
whether appellant had satisfied Governor in Council of
rehabilitation — Procedural formalities minimal when issuing
s. 27(1) report and s. 27(3) direction as decision purely
administrative — Immigration officer when issuing report not
required to give person concerned opportunity to answer alle
gations — Right of appellant to apply for exercise of Governor
in Council's prerogative ongoing — Statements by Ministers as
to appellant's deportation not giving rise to reasonable appre
hension of bias by Adjudicator in conduct of inquiry —
Statutory scheme relating to adjudicators under Act meeting
requirement that in reasonably informed person's view judi
cially independent.
•
This was an appeal against the Trial Division's decision
dismissing the appellant's application for an order of certiorari
quashing a report prepared under subsection 27(1) of the
Immigration Act, 1976 and the direction for inquiry under
subsection 27(3) and to prohibit the Adjudicator from proceed
ing with the inquiry. The appellant is a stateless person of
Palestinian origin. He and his family entered Canada in Febru-
ary, 1987 under immigration visas issued in Spain by a Canadi-
an visa officer. The family was granted permanent residence
status upon entry. In December, 1987, the appellant was
advised by an immigration officer that the Department was
aware of his 1968 conviction in Greece for offences relating to
an aircraft hijacking incident. The appellant was given the
option of leaving the country voluntarily or submitting to a
deportation inquiry. The appellant was to have until a certain
date to depart. Media pressure was, however, such that he was
served with notice of inquiry prior to exercising that option and
at the time of this appeal the inquiry was still proceeding.
Held, the appeal should be dismissed.
The immigration officer in issuing a subsection 27(1) report
and a direction for inquiry under subsection 27(3) of the Act
was not required to possess information as to whether the
appellant had satisfied the Governor in Council as to his
rehabilitation. The exemption provided in paragraph 19(1)(c)
describes members of the class who will not be granted admis
sion and does not narrow the class encompassed by that provi
sion. The initiation of a subsection 27(1) report and a direction
for inquiry under subsection 27(3) require minimal formalities
as these decisions are purely administrative: Kindler v. Mac-
Donald, [1987] 3 F.C. 34 (C.A.). Furthermore, the immigra
tion officer before issuing the report is not required to give the
person concerned an opportunity to answer the allegations
contained therein. The appellant's right to apply for the exer
cise of the Governor in Council's prerogative is ongoing.
The evidence of various statements made by Ministers of the
Crown in reference to the case at bar cannot be said to have, in
a reasonably informed person's view, created a reasonable
apprehension of bias by the Adjudicator in the conduct of the
inquiry.
Having analyzed all of the circumstances surrounding the
operation of the adjudication system under the Act, the conclu
sion reached was that the tribunal does enjoy the essential
objective guarantees of judicial independence.
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.), ss. 7, 11(d).
Criminal Code, R.S.C. 1970, c. C-34.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1),
19(1 )(c),(e), 27(1)(a),(e),(3)•
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
23, 31.
Refugee Claims Backlog Regulations, SOR/86-701.
CASES JUDICIALLY CONSIDERED
APPLIED:
Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board No. 1, [1978] 1 S.C.R. 118; Martineau v.
Matsqui Institution Disciplinary Board No. 2, [1980] I
S.C.R. 602; Kindler v. MacDonald, [1987] 3 F.C. 34
(C.A.); Committee for Justice and Liberty et al. v.
National Energy Board et al., [1978] 1 S.C.R. 369;
Valente v. The Queen et al., [1985] 2 S.C.R. 673.
DISTINGUISHED:
MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.); R. v.
Vermette (1984), 15 D.L.R. (4th) 218 (Que. C.A.); rev'd
[1988] 1 S.C.R. 985.
REFERRED TO:
Satiacum v. Minister of Employment and Immigration,
[1985] 2 F.C. 430 (C.A.).
AUTHORS CITED
Canada, House of Commons Debates, Vol. 129, No. 236,
2nd Sess., 33rd Parl., 18 January 1988, at pages
12000-12002.
Canada, House of Commons Debates, Vol. 129, No. 237,
2nd Sess., 33rd Parl., 19 January 1988, at pages
12055-12057.
Canada, House of Commons Debates, Vol. 129, No. 238,
2nd Sess., 33rd Parl., 20 January 1988, at pages 12095
and 12097.
Canada, House of Commons Debates, Vol. 129, No. 239,
2nd Sess., 33rd Parl., 21 January 1988, at page 12150.
Canada, House of Commons Debates, Vol. 129, No. 258,
2nd Sess., 33rd Parl., 24 February 1988, at page 1380.
COUNSEL:
Barbara Jackman, Lorne Waldman, Maureen
Silcoff and Pia Zambelli for appellant.
David Sgayias and Michael Duffy for
respondents.
SOLICITORS:
Ruby & Edwardh and Chiasson, Jackman,
Toronto, for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from an order of
the Trial Division dated March 7, 1988 [[1988] 3
F.C. 308 (T.D.)]. In that decision, the learned
Motions Judge dismissed the appellant's applica
tion for an order:
(a) of certiorari quashing the report made
against him pursuant to subsection 27(1) of the
Immigration Act, 1976 [S.C. 1976-77, c. 52], by
immigration officer D. Bacon;
(b) of certiorari quashing the direction for
inquiry made against him pursuant to subsection
27(3) of the Immigration Act, 1976, by Edward
Donagher, Director General of the Operations
Branch for the Deputy Minister of Immigration;
and
(c) prohibiting the Adjudicator appointed under
the Immigration Act, 1976, from proceeding
with the appellant's inquiry under that Act.
THE FACTS
The appellant deposed that he was born in 1943
in a part of Palestine which is now within the
national boundaries of the State of Israel. He
further deposed that he is a stateless person. He
has not been issued a passport by any country nor
does he have the right to reside in or enter any
country in the world. He and his family entered
Canada on February 25, 1987, pursuant to immi
gration visas issued by a Canadian visa officer in
Spain. Permanent residence status was granted to
them upon entry.
On December 21, 1987, the appellant spoke on
the telephone with immigration officer C. Fiamelli
with respect to his previous activities. An interview
was arranged and was held on December 29, 1987.
At the interview the appellant was advised that the
Immigration Department was aware that he had
been convicted in 1968 in Greece of offences relat
ing to the attack on an Israeli El Al aircraft and to
his participation in that incident.
The appellant was given two options by Mr.
Fiamelli. The first option entailed his leaving
Canada voluntarily. Were he to proceed in this
fashion no deportation proceedings would be ini
tiated. Mr. Fiamelli suggested that he would be
given until the end of January to leave voluntarily.
If the appellant did not agree to leave voluntarily,
the alternative was a deportation inquiry under the
Act. The appellant was informed of the three
grounds on which an inquiry would be held. At the
same time, Mr. Fiamelli wrote down the section
numbers of the relevant provisions of the Act for
the appellant.'
The appellant retained a solicitor, Mr. Brian
Pennell, on December 31, 1987. Mr. Pennell, in a
telephone conversation with Mr. Fiamelli, on
January 15, 1988 was advised of the three grounds
supra, which were to form the basis of the appel
lant's inquiry. Mr. Fiamelli again mentioned the
two alternatives open to the appellant—voluntary
departure or a deportation inquiry. Counsel
indicated that he would require further instruc
tions from the appellant.
Mr. Pennell had another telephone conversation
with Mr. Fiamelli on January 18, 1988. In that
conversation Mr. Fiamelli advised that, despite the
publicity the case was receiving, the appellant was
still free, if he chose, to leave the country volun
tarily. On January 19, 1988, Mr. Pennell had yet
another telephone conversation with Mr. Fiamelli.
'This is a reference to the three classes listed in the subsec
tion 27(1) report made against the appellant: (a) the inadmiss
ible class described in paragraph 19(1)(c) of the Act; (b) the
inadmissible class described in paragraph 19(1)(e) of the Act;
and (c) the class of persons described in paragraph 27(1)(e) of
the Act.
He told Mr. Fiamelli that the appellant had still
not decided what he was going to do, that he
favoured voluntary departure, but that it was very
difficult for him to locate a place where he could
go in safety. On January 20, 1988, Mr. Fiamelli
telephoned Mr. Pennell and requested to see Mr.
Pennell, stating that he had a paper for him. Later
that day Mr. Fiamelli gave to Mr. Pennell a copy
of the subsection 27 (1) report and the subsection
27(3) direction for inquiry relating to the appel
lant. Copies of those documents were also served
personally on the appellant at approximately mid
night on January 20, 1988. Mr. Pennell deposed
that he had no dealings or contact with any person
from the Department of Employment and Immi
gration except Mr. Fiamelli. He deposed further
that at no time during any of his conversations
with Mr. Fiamelli was he ever invited to make
submissions to the effect that the appellant had
been rehabilitated or that he was not a threat to
the national interest. He deposed further that he
had never been informed that the appellant could
make such submissions. The evidence as found by
the learned Motions Judge is that the appellant
expressed surprise when served with the notice of
inquiry on January 20, 1988, since he had under
stood that he would have until the end of January
before an inquiry would be instituted. The appel
lant's inquiry was convened for January 25, 1988.
The appellant deposed that, just before the inquiry
was to commence, he asked Mr. Fiamelli why the
inquiry had been ordered since at the January 20
meeting, the appellant informed him that he had
decided to try to leave voluntarily. Mr. Fiamelli's
response on January 25 was that the Government
ordered the inquiry because of pressure resulting
from the media. The inquiry commenced on Janu-
ary 25, 1988, was adjourned to February 15, 1988
for resumption, but with an agreement to convene
on February 2, 1988, to deal with media access.
On February 1, 1988, the appellant filed an
originating notice in the Trial Division seeking the
relief listed supra. Based on this circumstance,
counsel for the appellant requested that the inqui
ry be adjourned sine die until there was a final
determination of the motion before the Trial Divi
sion. The Adjudicator refused this request, the
inquiry was resumed on February 15, 1988 and
has been resumed and adjourned from time to time
and is still proceeding. At the time of the hearing
of this appeal, no final determination had been
made on the allegations before the inquiry. How
ever, we were advised by counsel for the respon
dents that the allegations relative to paragraph
19 (1) (e) of the Act had been abandoned during
the course of the inquiry.
On March 7, 1988, the Trial Division dismissed
the originating notice of motion and denied to the
appellant, all of the relief asked for therein. This
appeal is from that decision.
THE ISSUES ON APPEAL
The issues on this appeal can be broadly stated
as follows:
1. Did the immigration officer who authorized
the subsection 27(1) report against the appellant
exceed her jurisdiction or act without jurisdic
tion in issuing the report?
2. Did the Director of Operations, acting on
behalf of the Deputy Minister exceed his juris
diction, or act without jurisdiction in failing to
ensure that the statutory prerequisites to the
issuance of a subsection 27(1) report were satis
fied prior to issuing the direction given pursuant
to subsection 27(3) of the Act?
3. Does there exist reasonable apprehension of
bias in the Adjudicator's handling of the depor
tation proceedings against the appellant because
of statements made by various ministers of the
Crown?
4. Does the Adjudicator possess institutional in
dependence so as to be able to perform the
duties and responsibilities imposed upon him
pursuant to the Immigration Act, 1976, in
accordance with the rules of natural justice and
the principles of fundamental justice?
I. The subsection 27(1) report 2
Under this heading, the appellant makes two
submissions:
(a) That the immigration officer exceeded her
jurisdiction because at the time the subsection
2 The relevant portion of subsection 27(1) is paragraph
27(1)(a) which reads:
(Continued on next page)
27(1) report was made, she was not in posses
sion of information that prima facie brought the
appellant within the parameters of paragraph
19(1)(c) of the Act; and
(b) That the immigration officer, in issuing a
section 27 report is under a duty of fairness to
treat the appellant in the same manner as all
those in a similar position, and that, on the facts
of this case, that duty was not discharged.
(a) Excess of jurisdiction
It is the appellant's position that with respect to
paragraph 19(1)(c), 3 the immigration officer,
before making the subsection 27(1) report, must
have been in possession of information indicating
that:
(i) the appellant has been convicted of an
offence that, if committed in Canada, consti
tutes or, if committed outside Canada, would
constitute an offence which carries a maximum
sentence of ten years or more; and
(ii) where five years have passed since termina
tion of sentence, the person concerned has not
satisfied the Governor in Council that he has
rehabilitated himself.
(Continued from previous page)
27. (1) Where an immigration officer or peace officer has
in his possession information indicating that a permanent
resident is a person who
(a) if he were an immigrant, would not be granted landing
by reason of his being a member of an inadmissible class
described in paragraph 19(1)(c), (d), (e) or (g) or in
paragraph 19(2)(a) due to his having been convicted of an
offence before he was granted landing,
he shall forward a written report to the Deputy Minister
setting out the details of such information.
3 Paragraph 19(1)(c) reads:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(c) persons who have been convicted of an offence that, if
committed in Canada, constitutes or, if committed outside
Canada, would constitute an offence that may be punish
able under any Act of Parliament and for which a max
imum term of imprisonment of ten years or more may be
imposed, except persons who have satisfied the Governor
in Council that they have rehabilitated themselves and
that at least five years have elapsed since the termination
of the sentence imposed for the offence;
On the facts of this case, the submission is that
the immigration officer authorizing the section 27
report did not have, as of January 20, 1988, infor
mation in her possession from which she could
conclude that the appellant, if he were an immi
grant, would not be granted landing because the
information in her possession did not include infor
mation as to whether the appellant had satisfied
the Governor in Council as to his rehabilitation
and that since such information is an essential
element of the information which the immigration
officer must possess when making the report, the
absence thereof is fatal to the validity of the
report. I am unable to accept this submission.
Implicit in the appellant's argument is the assump
tion that persons who have satisfied the Governor
in Council as to their rehabilitation are not mem
bers of the inadmissible class described in para
graph 19(1)(c). I do not subscribe to this view of
the matter. In my opinion, the exemption provided
in paragraph 19(1)(c) describes members of the
class who will not be granted admission, i.e., those
members who have not satisfied the Governor in
Council as to their rehabilitation. It does not,
however, in my view, narrow the class encom
passed by paragraph 19(1)(c). The report mandat
ed by subsection 27(1) requires the authorizing
immigration officer to possess information that the
person concerned has been convicted of the kind of
criminal act specified in paragraph 19(1)(c) and to
have knowledge that the person concerned has not
satisfied the Governor in Council as to his or her
rehabilitation. It is unnecessary, in my view, for
the officer to wait for a decision as to rehabilita
tion before issuing the report. The section only
requires that the issuing officer be satisfied that no
decision of satisfaction by the Governor in Council
has been made at the time when that officer comes
into possession of the information relating to the
conviction. Accordingly, I am in agreement with
the view expressed by counsel for the respondents
that it is not a pre-condition to the operation of
paragraph 19(1)(c) that the Governor in Council
shall have considered the question of rehabilitation
and be not satisfied that the person concerned has
brought himself within the exception. I would,
therefore, reject this submission.
(b) The duty of fairness
In the submission of the appellant, the immigra
tion officer who issues a section 27 report is
required, by the duty of fairness, to treat the
appellant in the same manner as all other persons
in a similar position. In counsel's submission the
wording of paragraph 27(1)(a) requires that an
immigration officer view a permanent resident as
though he were an immigrant under paragraph
19(1)(c) of the Act. The further submission is that
because of the wording of paragraph 27(1)(a) "if
he were an immigrant, would not be granted land
ing" brings into play the same legal requirements
which are imposed upon a visa officer in assessing
an immigrant application from abroad, pursuant
to the requirements of section 9 of the Immigra
tion Act, 1976. Since a visa officer, in the circum
stances of this case, would be required to encour
age a person arriving in Canada to seek the
exercise of the Governor in Council's prerogative,
which entails affording him a reasonable opportu
nity to do so, it is the appellant's view that a like
opportunity should be afforded this appellant who
is a landed immigrant. It is asserted that the
written policy guidelines of the Commission afford
an applicant for admission to Canada, an opportu
nity to make submissions on the rehabilitation
issue and that this immigration officer erred in law
in issuing the report by failing to meet with the
appellant and without giving him a reasonable
opportunity to make submissions. The appellant
also alleges that the learned Motions Judge erred
in finding that the appellant had received adequate
information and opportunity to make representa
tions on the issue of rehabilitation.
In my view, these submissions cannot be given
effect to. Insofar as the Department's policy direc
tives are concerned, the Martineau (No. 1) case 4
has established that policy directives, whether
made pursuant to regulatory authority or general
administrative capacity, are no more than direc
tions and are unenforceable by members of the
public. The procedural formalities which are
4 Martineau et al. v. Matsqui Institution Inmate Discipli
nary Board No. 1, [1978] 1 S.C.R. 118, per Pigeon J., at
pp. 129-130.
required in respect of an immigration officer when
initiating a subsection 27 (1) report are minimal, in
my view. As stated by Dickson J. (as he then was)
in Martineau v. Matsqui Institution Disciplinary
Board No. 2, [1980] 1 S.C.R. 602, at pages 626-
629, there is a "general duty of fairness resting on
all public decision-makers" [at page 628] but
there is "a flexible gradation of procedural fairness
through the administrative spectrum" [at page
629]. I conclude that the procedural formalities in
this situation are minimal, firstly, because this is a
purely administrative decision, and secondly,
because of the rationale of this Court's decision in
the Kindler case. 5 In Kindler, the direction for an
inquiry pursuant to subsection 27(3) of the Act
was being attached. 6 However, since the Court
discusses the nature of the entire inquiry process, I
think some of the comments therein are equally
applicable to the first step in that process, namely,
the issuance of the subsection 27(1) report. Mr.
Justice MacGuigan, in writing the reasons of the
Court, after noting that the subsection 27(3) deci
sion to issue a direction for an inquiry is a purely
administrative decision went on to state, at page
39:
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.
In my view these comments would apply equally to
the issuance of a subsection 27(1) report by an
immigration officer. That officer, when issuing the
subsection 27(i) report, is merely the initiator of
the inquiry process. To adopt Mr. Justice MacGui-
gan's analogy to criminal procedures, the issuance
of the subsection 27(1) report is analogous to the
laying of an information Under the Criminal Code
[R.S.C. 1970, c. C-34]. I doubt that any success
would attach to a submission in such circum-
5 Kindler v. MacDonald, [1987] 3 F.C. 34 (C.A.).
6 Subsection 27(3) reads:
27....
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to
subsection (1) or (2), and where he considers that an inquiry
is warranted, forward a copy of that report and a direction
that an inquiry be held to a senior immigration officer.
stances that fundamental justice would oblige the
police to give an accused person the opportunity to
respond before the information has been sworn.
Given the clear wording of the statute, I am
unable to agree that an immigration officer is
required, before issuing a subsection 27 (1) report,
to give the person concerned an opportunity to
answer the allegations contained in that report.
The subsection 27(1) report is the first step in the
inquiry process. The subsection 27(3) direction is
the second step. Thereafter the scheme of the
statute and the regulations thereunder provide that
the person concerned will receive due notice of the
date and place at which the inquiry will be con
vened. On the facts of this case, it is clear that the
immigration officer who issued the subsection
27(1) report had sufficient knowledge and infor
mation upon which to base the report. It is also
apparent from the record that the appellant was
given full particulars of the allegations against
him. The facts contained in the report, if estab
lished at the inquiry, would clearly make him a
member of the inadmissible class of persons
described in paragraph 19(1)(c) of the Act. Not
withstanding this circumstance, it was certainly
open to him to apply for the exercise of the
Governor in Council's prerogative. If he were suc
cessful in this endeavour, he would still be a
member of the inadmissible class described in
paragraph 19(1)(c) but because of the exception
therein set out, he could still be granted admission
upon the exercise of that prerogative. Accordingly,
and for the foregoing reasons, I am unable to
accept the submissions advanced by the appellant
in respect of the subsection 27(1) report.
II. The Subsection 27(3) direction for inquiry
Counsel for the appellant raised essentially the
same objections to this direction as he did with
respect to the subsection 27(1) report. Since in
Kindler, the subsection 27(3) direction was in
issue as noted supra, this Court's reasons in that
case apply directly to this branch of the appellant's
submissions. Counsel endeavoured, initially to dis
tinguish Kindler on the basis that, in that case, the
applicant was not a landed immigrant as is this
appellant and that different considerations should
apply. I do not find this argument persuasive. In
Kindler the Court was addressing the scheme of
the inquiry process as set out in the Immigration
Act, 1976. That is the same inquiry process as in
the case at bar. I refer particularly to the following
comments of Mr. Justice MacGuigan at pages 40
and 41 of the case:
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 individu
al", affirmed by the Supreme Court in Cardinal et al. v.
Director of Kent Institution, [1985] 2 S.C.R. 643, at page 653
(emphasis added).
In fact, it would to my mind be ludicrous to require even a
paper hearing in such circumstances with respect to the deci
sion to grant a hearing. If that were the law, why would there
not be a still earlier hearing with respect to that decision to
hold a hearing, and so on in infinite regression? Provided that
the official decisions made are taken in good faith, I cannot see
how they can be lacking in fairness, and the Trial Judge has
found as a fact that there is no evidence of bad faith.
Under the rubric of fairness, I would like to
express the further view that on the facts of this
case, it is evident that the appellant had ample
opportunity to make submissions in support of his
view that neither a subsection 27(1) report nor a
subsection 27(3) direction should have been issued.
The evidence in this regard is succinctly and accu
rately summarized by the learned Motions Judge
(at page 319 F.C.):
Second, adequate information and opportunity to make sub
missions were provided in this case. Following his first inter
view with Mr. Fiamelli, the applicant knew all the concerns the
Immigration Department had with respect to his background,
knew the specific incidents which had caused those concerns,
knew the grounds on which an inquiry would proceed if neces
sary and knew which sections of the Act were being applied. He
expressed the intention of discussing all of this with his legal
representative, which he did, and Mr. Pennell then had the
opportunity to discuss the matter with Mr. Fiamelli, which he
did. Two further telephone conversations between Mr. Pennell
and Mr. Fiamelli conveyed the information that the matter was
becoming more urgent and that some decisions would have to
be made soon. Those occasions offered other opportunities to
forestall a report and inquiry by providing more information.
There was no requirement, in the circumstances of this case, for
Mr. Fiamelli to do anything further before a report could be
prepared on Mr. Mohammad.
and again at page 334 F.C.:
What did happen, finally, was that he was invited to an
interview with Mr. Fiamelli who more than adequately and
fairly explained all of the considerations which were in play—
all of the legislative provisions and all of the relevant informa
tion, including the major concerns in the applicant's case. They
were all very legitimate immigration concerns. Mr. Mohammad
was given the opportunity to consult counsel, and several
conversations took place between his representative and Mr.
Fiamelli. The applicant failed to seek access to the Minister as
provided in paragraphs 19(1)(c) and (e) partly, I am sure,
because he never did disclose the information which might form
the basis for such a request. He must accept responsibility for
that decision.
The high profile nature of the case does not change these
considerations. It is a result of the seriousness of the crime
involved, the way the applicant got into Canada and the failure
to make full disclosure during any of the available opportuni
ties. It is hardly surprising that the case would hit the headlines
and cause a stir in the House of Commons. It is also not
surprising that those factors placed pressure on the respon
dents' representatives to proceed with dispatch to have this case
adjudicated. I have said that I find nothing irregular about that
situation.
In my view, these findings of fact made by the
learned Motions Judge and the inferences which
he drew therefrom were clearly open to him on this
record.
I also agree with the submission of the respon
dents that there is nothing to prevent the appellant
from making an application to the Governor in
Council, even at this later stage in the proceedings.
That opportunity is a continuing one, in my view.
For all of the above reasons, then, I cannot
agree with the appellant's submissions with respect
to the invalidity of the subsection 27(3) direction.
III. Reasonable apprehension of bias due to state
ments by ministers of the Crown
The appellant relies specifically on nine differ
ent statements made by various ministers of the
Crown dealing with the ongoing deportation pro
ceedings against the appellant. Those statements,
as set out in the appellant's memorandum of fact
and law, are as follows:
Statements by Honourable James Kelleher, the
Solicitor General of Canada.
(a) January 18, 1988—in the House of Commons
in response to a question from Honourable Ed
Broadbent, M.P.,—Leader of the New Democratic
Party [Canada, House of Commons Debates, Vol.
129, No. 236, 2nd Sess., 33rd Parl., 18 January
1988, at pages 12000-12001]:
Mr. Speaker, I can advise the House that in the summer of
1986 a Mr. Muhammad [sic] applied for landed immigrant
status to Canada through our office in Madrid, Spain. As a
result of the inquiries made to Spanish authorities a positive
response was obtained and, as a result, our liaison officer in
Spain advised Immigration that there was not a security prob
lem. That information was obtained, I may say, because of
false and misleading information which this Mr. Muhammad
gave to our officer in Spain.
Mr. Speaker, as I have already advised the House, the
gentleman is in Canada because he gave false and misleading
evidence to our liaison officer in Spain.
(b) January 19, 1988—in the House of Commons
in response to a question from Honourable Ed
Broadbent, M.P., Leader of the New Democratic
Party [Canada, House of Commons Debates, Vol.
129, No. 237, 2nd Sess., 33rd Parl., 19 January
1988, at pages 12056-12057]:
Mr. Speaker, we made the positive ID in May. We turned
the information over to Immigration in June. They immediately
commenced their investigation. They went to the Minister in
October, who ordered that proceedings be started. We have
followed the due process of the law. We are doing everything
we can, and no one wishes more than this Minister or this
Government to rid this country of this terrorist.
Mr. Speaker, I believe this question has already been
answered. However, I will repeat the answer for the benefit of
the Hon. Member. We did the positive ID in May. It was
turned over to Immigration in June. I repeat my original
admonition that surely the Member would want us to follow the
due process of the law.
Heinous as this crime is, and as much as we would like to get
rid of this gentleman as quickly as possible, the due process of
the law must be followed. We must have a sustainable case. I
can assure the Hon. Member, without going into security
details, that this man is under very close observation.
Statements by Honourable Benoit Bouchard, Min
ister of Employment and Immigration.
(c) January 18, 1988—in the House of Commons
in response to a question from Mr. Sergio Marchi,
M.P. for York West [Debates, at pages 12001-
12002] :
Mr. Speaker, the same false information given to the security
agency in Spain was used to gain access to Canada.
The individual in question used 21 different names for
identification purposes and when he arrived at the Canadian
border the name appearing on the official visa did not match
any on the lists we had. This is why the individual was
admitted.
But again, Mr. Speaker, I want to correct a false statement
made by my colleague from York South—Weston to the effect
that Canadian security was jeopardized. That same day or the
day after this individual entered Canada we were aware of his
whereabouts. He was followed by the security agency, or the
RCMP in this case. At no time ever did this individual consti
tute a threat.
(d) February 24, 1988—in the House of Com
mons, in response to a question from Mr. Sergio
Marchi, M.P. for York West [Canada, House of
Commons Debates, Vol. 129, No. 258, 2nd Sess.,
33rd Parl., 24 February 1988, at page 1380]:
Mr. Speaker, I think I was quite clear about yesterday's
events. I will repeat what I said for my colleague's benefit.
First, we were approached ... The Government had always
clearly stated that it would facilitate Mr. Mohammad's depar
ture whether it is voluntary or through a deportation order, as
we are doing now. Mr. Mohammad contacted CEIC officials
and his lawyer suggested a voluntary departure based on deals
and procedures that they themselves arranged. The Govern
ment is only facilitating Mr. Muhammad's [sic] departure
from Canada with security measures and a certificate of identi
ty. My hon. colleague will have to admit one thing unless he is
against Mr. Muhammad's departure ... But this would not be
the first time his Party has conflicting positions. However now
that Mr. Muhammad is back in Canada, for whatever reason
he had, we are going on with the deportation procedure and the
Government will not rest before he is out of the country.
Statements by Honourable Gerry Weiner, Minis
ter of State for Immigration.
(e) January 19, 1988—in the House of Commons
in response to a question from Honourable Ed
Broadbent, M.P., Leader of the New Democratic
Party [Debates, at pages 12055-12056]:
Mr. Speaker, Canada cannot and will not become a safe
haven for terrorists.
Our intent is to apply the full force of the law to ensure the
expulsion of this individual from Canada. Terrorists will not be
allowed to remain in this country.
Mr. Speaker, we have collected strong documented evidence
to build a strong case for deportation. We interviewed the
immigrant in the month of December and indicated to him that
deportation proceedings would be going ahead very soon. The
next step in the process is a formal hearing before an immigra
tion adjudicator. That will take place very soon.
(f) January 20, 1988—on the "CBC National
News" at 10.00 p.m.:
Look we're dealing with a convicted terrorist. Our object is to
get this man out of the country.
(g) January 20, 1988—an interview transmitted
over the Southam Wire Service which included the
following statement:
Our objective is to get this man out of the country. He may
either leave as a result of the threat of deportation or as a result
of the deportation order that will be issued under due process.
But our objective will be accomplished either way.
(h) January 20, 1988—in the House of Commons
in response to a question from Mr. Jacques Guil-
bault, M.P. for St. Jacques [Canada, House of
Commons Debates, Vol. 129, No. 238, 2nd Sess.,
33rd Parl., 20 January 1988, at pages 12095 and
12097]:
Mr. Speaker, I have indicated clearly that the legal proceed
ings have been initiated. The man is here illegally as a convict
ed terrorist. Our primary objective is to get this man out of the
country. He either leaves because of the threat of deportation
or because of a deportation order issued under due process.
It is possible that some members of the Opposition may now
want to talk to the other Chamber about Bill C-84 to see if that
could be advanced very quickly. It is possible that some of those
who have spoken against it, now want to speak in favour of
what we are trying to do, which is to keep terrorists, saboteurs,
and spies out of the country.
and
(i) January 21, 1988—in the House of Commons
in response to a question by Sergio Marchi,
member for York West [Canada, House of Com
mons Debates, Vol. 129, No. 239, 2nd Sess., 33rd
Parl., 21 January 1988, at page 12150]:
I will confirm for the House that there is a convicted terrorist
who is here illegally. Our intent is to use the full force of the
law to get him out of the country. The deportation proceedings
are under way. The papers have been served and the hearing
will be next Monday.
There is no issue between the parties with
respect to the proper test to be applied for deter
mining the existence of a reasonable apprehension
of bias in a particular case. That test was set out
by Mr. Justice de Grandpré in the Crowe case:'
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reason
able one, held by reasonable and right minded persons, apply
ing themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter
realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously,
would not decide fairly."
I can see no real difference between the expressions found in
the decided cases, be they `reasonable apprehension of bias',
`reasonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial
and I entirely agree with the Federal Court of Appeal which
refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
This is the proper approach which, of course, must be
adjusted to the facts of the case. The question of bias in a
member of a court of justice cannot be examined in the same
light as that in a member of an administrative tribunal en
trusted by statute with an administrative discretion exercised in
the light of its experience and of that of its technical advisers.
The parties are also agreed that the inquiry
before the Adjudicator is a quasi-judicial proceed
ing to which the rules of natural justice, including
those as to reasonable apprehension of bias apply.
The appellant submits that the remarks of the
Solicitor General, of the Minister of Employment
and Immigration and of the Minister of State for
Immigration direct the Adjudicator in clear and
unambiguous terms as to the order that he must
make in the appellant's case when the inquiry is
concluded. It is counsel's further submission that
the Ministers' references to due process, when
' Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369, at pp. 394-395.
This test was followed by the Supreme Court of Canada in
Valente v. The Queen et al., [1985] 2 S.C.R. 673, at p. 684.
It was also applied by this Court in Satiacum v. Minister of
Employment and Immigration, [1985] 2 F.C. 430 (C.A.), at
p. 436 and in MacBain v. Lederman, [ 1985] 1 F.C. 856
(C.A.), at pp. 867-868.
viewed in context "are patently window dressing
for the clear and unambiguous message that the
inquiry will result in a deportation order." (Appel-
lant's Memorandum of Fact and Law, paragraph
169.) Counsel also submits that many of the
remarks of the Ministers supra, amount to a pre
judgment of the very issues that are before the
Adjudicator for decision.
I am unable to agree with these submissions. It
is my opinion that an informed person viewing the
matter realistically and practically, and having
thought the matter through, would not reach the
conclusion that it was more likely than not that the
Adjudicator, whether consciously or unconscious
ly, would not decide fairly, even on the assumption
that the statements of the Ministers as above
detailed, were brought to the attention of and
made known to the Adjudicator.
Keeping in mind the appropriate test and ad
dressing the objections set out by counsel for the
appellant, I propose to examine the various state
ments made by the three Ministers in question.
Dealing firstly with the two statements made by
the Solicitor General of Canada, I would observe,
initially, that both of these statements were made
in response to questions in Question Period in the
House of Commons. Insofar as the statement of
January 18, 1988 is concerned, the statement
relied on the appellant as reproduced in III(a)
supra, is not the full answer given by the Minister
in response to the question.
A perusal of page 183 of the Case on Appeal,
Volume I makes it clear that the Solicitor Gener
al's reference to false and misleading information
must be read in context of the balance of his
answer to the effect that this "information was
turned over to Immigration which has been pro
ceeding since that time to institute deportation
proceedings against the gentleman in question."
When considered in its entirety, I find nothing
objectionable in that statement. The Solicitor Gen
eral was simply repeating one of the allegations
enumerated in the subsection 27(1) report,
namely, that the appellant was in the class of
persons described in paragraph 27(1)(e) of the
Act. 8
Coming now to the second statement of the
Solicitor General, namely the statement made in
the House of Commons during the Question
Period of January 19, 1988, I can find nothing
objectionable in this answer either. After stating
that the due process of law had been followed, the
Minister said:
Heinous as this crime is, and as much as we would like to get
rid of this gentleman as quickly as possible, the due process of
the law must be followed. We must have a sustainable case.
This answer is in reality in answer to a question by
Mr. Sergio Marchi, M.P., and not in answer to a
question by Mr. Broadbent. Mr. Marchi's question
reads [Debates, at page 12057]:
Can the Minister explain why this individual was not arrest
ed or detained, at least to guarantee that he would not escape
or go underground during the inquiry process ...
In my view, the Minister's answer, when viewed in
the context of the question, is a perfectly sensible,
reasonable and responsive answer to that question.
I can find nothing in it whatsoever to awaken in a
reasonable person, any apprehension that the
Adjudicator would be improperly influenced in
any way by such a statement. To the contrary, it
seems to me that if the Adjudicator were made
aware of the comments of the Solicitor General,
this circumstance could only operate as a reminder
that the requirements of natural justice must be
observed in his conduct of the inquiry.
Turning now to the two statements made by the
Minister of Employment and Immigration, I fail
to see how the statement made by the Minister on
January 18, 1988, during Question Period can
8 Paragraph 27(1)(e) reads:
27. (1) Where an immigration officer or peace officer has
in his possession information indicating that a permanent
resident is a person who
(e) was granted landing by reason of possession of a false
or improperly obtained passport, visa or other document
pertaining to his admission or by reason of any fraudulent
or improper means or misrepresentation of any material
fact, whether exercised or made by himself or by any other
person, or
he shall forward a written report to the Deputy Minister
settting out the details of such information.
possibly raise any question of apprehension of bias.
The question by Mr. Marchi related to whether
the appellant's arrival in Canada raised a threat to
the security of Canada. The Minister's answer was
a denial that Canadian security was jeopardized.
Insofar as the statement made by this Minister
during Question Period on February 24, 1988, is
concerned, it is again necessary to examine the
context in which the statement was made. The
Minister was responding to a question by Mr.
Marchi, seeking an explanation as to what had
happened relative to the appellant's journey to
London, England and his return therefrom. The
key portions of the Minister's response read
[Debates, at page 13801:
The Government had always clearly stated that it would facili
tate Mr. Mohammad's departure whether it is voluntary or
through a deportation order, as we are doing now ... now that
Mr. Muhammad [sic] is back in Canada, for whatever reason
he had, we are going on with the deportation procedure and the
Government will not rest before he is out of the country.
In my view, these statements are consistent with
the oft-stated view of the Government that the
deportation proceedings against the appellant
would be vigorously followed. While the statement
that "the Government will not rest before he is out
of the country" is somewhat hyperbolic, when it is
remembered that this exchange took place in the
adversarial atmosphere which is so often present
during the Commons Question Period, and when it
is considered in the context of repeated assurances
that due process will be preserved in the deporta
tion proceedings against the appellant, I am not
prepared to agree that this statement would give
rise to a reasonable apprehension that an adjudica
tor, having knowledge of the Minister's statement,
would be biased in his conduct of the appellant's
inquiry.
Lastly I come to the four statements made by
the Minister of State for Immigration. Insofar as
his statement on January 19, 1988 during Ques
tion Period is concerned, I can find nothing objec
tionable in it. His reference to applying "the full
force of the law to ensure the expulsion of this
individual from Canada" is completely consistent
with other statements by this Minister and his
colleagues that "due process" will be observed. He
also expresses the view that "we have collected
strong documented evidence to build a strong case
for deportation." This statement is also consistent
with the view that the principles of due process
and natural justice are being observed. Turning
now to this Minister's remarks on January 20,
1988 to members of the national media and trans
mitted over the Southam Wire Service, the follow
ing statement is cited by counsel for the appellant
as being a particularly egregious example of pre
judicial statements:
He may either leave as a result of the threat of deportation or
as a result of the deportation order that will be issued under
due process. But our objective will be accomplished either way.
(Emphasis added.)
In my view, this statement needs to be con
sidered in the context of two other statements
made by the Minister in the Commons Question
Period, one on January 20 and one on January 21.
On January 20 he said:
Our primary objective is to get this man out of the country. He
either leaves because of the threat of deportation or because of
a deportation order issued under process.
On January 21, he said:
Our intent is to use the full force of the law to get him out of
the country. The deportation proceedings are under way. The
papers have been served and the hearing will be next Monday.
(Emphasis added.)
When all of these statements are taken in con
text, it seems to me that they are confirmatory of
the Minister's intention and desire to proceed
against the appellant pursuant to the provisions of
the Immigration Act, 1976. If one were to take, in
isolation, the remark made by this Minister on
January 20, 1988 that the deportation will be
issued, I agree that it would be an egregious
remark. However, when it is evaluated in the
context of the other remarks of this Minister as
well as the remarks of the two other Ministers in
question, I am not persuaded that this remark is
prompted by anything more than an excess of
confidence in the strength of the case for deporta
tion against the appellant.
Counsel for the appellant also relied on the
Vermette case. 9 In that case, the trial of the
accused in a criminal trial before a judge and jury
was discontinued by the Trial Judge because of the
9 R. v. Vermette, [1988] 1 S.C.R. 985.
exceptional publicity given to statements by the
Premier of Quebec in the National Assembly con
cerning the accused's defence and the credibility of
a witness. In the view of the Trial Judge, such
circumstances made it impossible to conduct a fair
trial.
In my view, the Vermette decision is easily
distinguishable from the case at bar on its facts.
The offending statements in Vermette may be
found in the reasons for judgment of Chouinard
J.A. ((1984), 15 D.L.R. (4th) 218 (Que. C.A.), at
page 229). Even a cursory perusal of those
remarks makes it quite clear that they were highly
prejudicial. As noted earlier herein, I have con
cluded that the statements by the Ministers com
plained of in this case are not objectionable nor are
they prejudicial. Accordingly, the Vermette deci
sion has no application to the instant case because
of the distinctly different factual situation.
Before leaving Vermette however, I would note
that Mr. Justice La Forest in writing the majority
decision for the Supreme Court of Canada in that
case made reference to "the confidence that may
be had in the ability of a jury to disabuse itself of
information that it is not entitled to consider"
(pages 993-994). I also adopt the comments of La
Forest J. at page 992 of the Vermette decision,
where he said:
As the Court of Appeal of Ontario observed in R. v. Hubbert
(1975), 29 C.C.C. (2d) 279, at p. 289 (affirmed by this Court:
[1977] 2 S.C.R. 267), "There is an initial presumption that a
juror ... will perform his duties in accordance with his oath"
In my view, those comments concerning the
likely reaction of a juror to prejudicial information
apply with even greater force where, as in this
case, an adjudicator under the Immigration Act,
1976, is the decision-maker. I think it even less
likely that such a person would be influenced by
the Ministers' statements, even assuming that they
were highly improper, as was the case in
Vermette. 10 I so conclude, keeping in mind, that
adjudicators are professional decision-makers, and
are undoubtedly very much aware that their deci
sions are subject to the constraints imposed upon
each and every decision made on a quasi-judicial
basis.
Accordingly, and for the above reasons, I am
not persuaded that a reasonable apprehension of
bias has been shown, based on the various state
ments made by the Ministers of the Crown herein.
IV. Institutional independence
Counsel for the appellant submits that the
adjudicators performing their duties in the conduct
of inquiries under the Immigration Act, 1976 do
not possess sufficient institutional independence to
perform their role within the statutory scheme of
the Act, in accordance with the rules of natural
justice and the principles of fundamental justice. It
is the appellant's position that the statutory
scheme does not endow the adjudicator with
"objective institutional guarantees that establish a
perception of sufficient institutional distance from
the executive branch of government and thus of
adjudicative independence." (Appellant's Memo
randum of Fact and Law, paragraph 197.)
It is agreed between the parties that the require
ment of independence is included in the rules of
natural justice and, as well, is enshrined in section
7 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.)]. It is also agreed that while subsection
11(d) of the Charter does not directly apply here,
it is clear that quasi-judicial tribunals such as
adjudicators must also have the capability to make
impartial decisions. This capability is only possible
when there is present a perception of sufficient
1° It should be kept in mind that an "adjudicator" is defined
in subsection 2(1) of the Immigration Act, 1976 as "a person
appointed or employed under the Public Service Employment
Act for the purpose of carrying out the duties and functions of
an adjudicator under this Act;" Section 23 of the Public
Service Employment Act [R.S.C. 1970, c. P-32] requires, inter
alia, employees to take and subscribe an oath or affirmation of
allegiance together with the oath or affirmation set out in
Schedule III which requires the employee to swear or affirm
that he "will faithfully and honestly fulfil the duties that
devolve" upon him by reason of his employment in the Public
Service.
institutional distance from the executive branch of
government. The appellant relies on a number of
facts and circumstances to support his submission
that such a perception is lacking in this case. I now
propose to summarize the facts and circumstances
which the appellant relies on in support of this
submission.
(a) The structure of the Canada Employment and
Immigration Commission
The structure of the Commission creates a chain
of command stemming from the Minister to the
individual adjudicator. The Deputy Minister and
the Associate Deputy Minister, are the Chairman
and the Vice-Chairman respectively of the Com
mission. As a result, both stand in a supervisory
and disciplinary relationship to the case presenting
officers as well as to the adjudicators. Thus, both
the case presenting officers and the adjudicators
are civil servants under the direction of the
Minister.
(b) Legal direction
The Adjudication Directorate does not have its
own legal services branch. It must obtain its legal
advice from the Commission's legal advisors. In
the appellant's submission this compromises the
independence of the adjudicator. The Commis
sion's legal advisors also provide legal advice to the
case presenting unit. In the appellant's opinion,
this circumstance effectively deprives the adjudica
tor of any real independence from the Enforce
ment Division. Furthermore, interpretation of legal
issues are routinely formulated as policy by the
Adjudication Directorate, which statements of
policy are regularly distributed to the adjudicators.
The appellant relies on the affidavit of Stuart
Scott, a former Adjudicator, and now a Barrister
and Solicitor, practising in Ontario, who deposed
(Case on Appeal, Volume II, page 211, paragraph
20) as follows:
My experiences as an adjudicator were such that I never felt I
had to make a decision consistent with a view taken by supervi
sory officials. I did experience some pressure to conform to a
particular norm of decision making articulated by the Adjudi
cation Directorate of the Canada Immigration Commission on
particular substantive issues.
(c) Monitoring
Adjudicators are subject to an extensive moni
toring system. Its purpose is to ensure effectiveness
and efficiency, to pinpoint inconsistencies in the
application of the law and to evaluate the work of
adjudicators. One method employed to evaluate
the performance of adjudicators in their conduct
of hearings is to monitor hearing transcripts
including, particularly, the reasons for decision
given by them. The appellant's submission is that
this process "has a chilling effect upon the
independent spirit of the adjudicator." It is the
appellant's further submission "that the confined
system of propounding legal policy and of monitor
ing job performance, institutes a system of prior
restraint which contrasts sharply with the system
of appellate review within the judiciary."
(d) Security of tenure
The adjudicator, as a public servant, has the
security of tenure generally available to public
servants. Thus, pursuant to section 31 of the
Public Service Employment Act [R.S.C. 1970, c.
P-32], an adjudicator, like other public servants,
has the right of appeal against a recommendation
for demotion or dismissal to an independent board
established by the Commission. The decision of
that board is also subject to section 28 [Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10] review
by this Court. It is submitted by the appellant,
however, that various other disciplinary measures
may be imposed by the adjudicator's superiors
without access by the adjudicator to an independ
ent arbitration procedure. It is also noted that an
adjudicator may be subject to discipline for causes
not connected to the competency or capacity of the
adjudicator to perform his adjudicative functions.
Many examples are given of situations where an
adjudicator can be disciplined—to mention a few:
embarrassing the Minister, public criticism of
Government policies, failure to follow directives,
insubordination, etc. The submission is that these
constraints upon adjudicators are in sharp contrast
to the power to discipline or remove judges who
are removed only through an independent process.
(c) Bargaining unit
Adjudicators and case presenting officers are
members of the same bargaining unit and thus
share a common interest in relation to the terms
and conditions of their employment. It is suggested
that this community of interest will result in a
common position being taken in dealings with their
employer, the Commission.
(f) Acting positions
Many staff within the Commission are on acting
assignments. Permanent staff in one sector may be
transferred to another sector on a temporary
acting basis. There are adjudicators from the
Toronto Adjudication Office who are on acting
assignment as immigration appeals officers and,
while acting in this capacity, they represent the
Minister before the Immigration Appeal Board.
As well, adjudicators have been assigned to visa
offices abroad as acting visa officers. Likewise,
case presenting officers have taken acting assign
ments as adjudicators. One adjudicator has taken
an acting assignment in a supervisory position in
the Refugee Claims Backlog Regulations
[SOR/86-701] Programme. Applicants under this
Programme are mainly individuals who are
already the subject of inquiries under the Act.
Another example is given of one case presenting
officer who had been acting as an adjudicator, was
returned to be a case presenting officer once more,
and then later appointed an adjudicator on a per
manent basis. Another example is given of an
adjudicator who had been on an acting assignment
as an immigration appeals officer who, thereafter
was returned to his permanent position as an
adjudicator.
The appellant's submissions in this regard read as
follows (Appellant's Memorandum of Fact and
Law, paragraph 210):
It is respectfully submitted that the existence of "many
acting assignments" within the Department compromises the
independence of the adjudicator by rendering the separation
between the adjudicative and prosecutorial functions transitory
and illusory. The effective interchangeability of the adjudicator
and `prosecutor' completely undermines any fragile institution
al separation that might otherwise exist. Further, acting assign
ments in the department are improperly given outside the
ordinary job competition process by management. This is par-
ticularly serious when acting assignments within the enforce
ment side are seen as vehicles for promotion by adjudicators.
(g) Administrative independence
The scheduling officer who determines which
adjudicator will hear a particular case is employed
within the Case Presenting Unit. His decisions
may only be overturned by the section head or
division chief in the Adjudication Directorate. It is
the appellant's submission that this system affords
no institutional protection to an adjudicator
against the arbitrary selection and assignment by
officials whose main interest is enforcement. In
counsel's view, the existence of this practice com
promises the adjudicator's independence. The
appellant makes the further point that adjudica
tors have little or no control over essential adminis
trative functions such as the scheduling of court
reporters and interpreters. In counsel's view, the
absence of control over such necessary and essen
tial administrative acts further undermines the
independence of the adjudicator.
Other facts and circumstances on the record and
relative to the issue of institutional independence.
The matters raised by the appellant,' supra, in
support of the submission that the necessary per
ception of institutional dependence is lacking on
this record, do not tell the whole story. Other facts
and circumstances, established on the record, need
to be mentioned before any objective can be made.
Insofar as the structure of the Commission is
concerned, there is evidence to the effect that all
adjudicators are under the direction and control of
the Adjudication Directorate. The position
description for the Director of the Adjudication
Directorate provides, inter alla, that the Director
be:
acountable for the provision of the adjudicative function at
immigration inquiries and release hearings in Canada, and
ensuring that inquiries and hearings are conducted in accord
ance with the rules of natural justice, the Immigration Act and
Regulations, and relevant case law. (Case on Appeal, Vol. Il,
p. 257)
Adjudicators reach their decisions on the basis of the Immigra
tion Act and regulations, relevant case law, and the policies and
procedures of the Adjudication Directorate. (Case on Appeal,
Vol. II, p. 258)
The Director, Adjudication Directorate is responsible for pro
viding efficient delivery of Adjudication services in Canada and
ensuring that the conduct of inquiries is fair and just and that
decisions rendered are of high quality and comply with the
rules of natural justice and the Immigration Act and regula
tions. (Case on Appeal, Vol. IL p. 258)
As adjudicators are independent decision makers the Director
must foster a flexible, collegial form of management. To ensure
consistent application of the law, policy positions regarding the
interpretation of the Immigration Act and Regulations and
continually changing court precedents must be developed by
means of discussion and persuasion in order to promote accept
ance and implementation by Adjudicators. An extensive opera
tional monitoring system is required to pinpoint inconsistencies
in the application of the law and training needs. As persons are
brought to inquiry by the officers of the Immigration Division,
and as one of the parties at the inquiry is the Minister's
representative (Case Presenting Officer) the Director must
consult extensively with the Director General, Operations and
the Director of Legal Services who provides legal advice to the
Immigration division. However, as Adjudicators are a quasi-
judicial tribunal it is necessary to ensure the impartiality and
independence of the Adjudication Directorate and its policies.
The need to maintain efficient and effective services through
consultation and negotiation must be balanced with the ability
to tactfully agree to disagree on legal and procedural issues.
(Case on Appeal, Vol. IL p. 259)
Dealing with the relationship between the case
presenting officer and the adjudicator, a perusal of
the duties prescribed for case presenting officers
reveals that he reports to the Supervisor of case
presenting officers, and that he has no supervisory
role with respect to adjudicators. His function is
not unlike that of a prosecutor in criminal proceed
ings. He does, however, have the duty, when
required, to prepare a report on inquiries at which
he has represented the Commission in which he is
expected to comment on the practices and proce
dures adopted and to comment:
... on the adequacy of the Adjudicator's decision to ensure
uniformity in the application of the Immigration Act and
Regulations. [Case on Appeal, Vol. II, pp. 243-245.]
More specifically, he is expected to evaluate the
practices and procedures employed by the
adjudicator, particularly where the decisions
appear to be inconsistent with the Act, the regula
tions or the jurisprudence. In such cases, the case
presenting officer is expected to give his views as
to whether or not an appeal should be initiated.
So far, I have been referring to the scheme of
the Act, and the regulations and the Administra
tive Directives thereunder pursuant to which
adjudicators are appointed. While such evidence
relevant, at least to the extent that it afforch
cogency as to how it was intended that the adjudi
cation system should operate, it is not, in itself.
conclusive on the issue of institutional indepen
dence. However, this record also contains some
direct evidence as to how the system operates in
practice. I refer to the evidence contained in the
affidavit of Stuart Scott, supra, who, as earlier
noted, was a former Adjudicator, and is now a
lawyer practising in Ontario, and specializing in
the practice of immigration law.
Referring to the structure of the Commission,
Mr. Scott describes the structure of the Adjudica
tion Directorate at paragraphs 4 to 8 of his affida
vit (Appeal Case, Volume II, pages 208-209).
Based on his description, it seems clear that
adjudicators and case presenting officers operate
within separate divisions of the Commission. I
agree with counsel for the respondents that
adjudicators and case presenting officers do not
report to a common superior and that: "it is only
at the apex that the hierarchies come together."
(Respondents' Memorandum of Fact and Law,
paragraph 90.)
Dealing with the question of legal direction, Mr.
Scott deposed, in paragraph 16 of his affidavit
(Case on Appeal, Volume II, page 211) that the
Adjudication Directorate was available to an
adjudicator when he sought guidance on difficult
legal issues. There are lawyers on staff in the
Adjudication Directorate—the Acting Director as
of February 5, 1988 was a lawyer. However, the
Adjudication Directorate does not have its own
legal services unit. On some occasions adjudicators
would seek and receive legal opinions from the
Legal Services Branch of the Commission. The
Commission's Legal Services Branch provides
legal opinions to other branches of the Commis
sion, including the Case Presenting Officers Unit
of the Enforcement Branch.
On the subject of monitoring, in addition to the
comments contained in paragraph 20 of his affida
vit, supra, Mr. Scott agreed (paragraph 19) that
the Adjudication Directorate monitors the tran
scripts of hearings by adjudicators. He added:
I understand this monitoring to be primarily focused on how
hearings were conducted. The result of the monitoring may be
used in discussions between an adjudicator and a section head
in employee valuations.
Mr. Scott also referred to the fact that the Com
mission occasionally provided statistics to
adjudicators relating to the number of persons who
failed to depart from Canada in response to depar
ture notices as well as the number who failed to
show for inquiries or removal after being released
from detention (paragraph 17). He went on to
relate in paragraph 17:
A superior officer did discuss with me the fact that I had a
higher release record and departure notice record than some of
the other adjudicators. I personally did not feel that the statis
tics on "no shows" should affect my decision making in each
individual case.
He also made it clear (paragraph 14) that he
always felt as an adjudicator "that the final deci
sion on a case was solely mine and that I did not
have to take direction on substantive matters of
law from my superior officers."
With respect to security of tenure, Mr. Scott
points out that disciplinary action can only be
taken against an adjudicator for just cause and
subject to the master collective agreement covering
civil servants. There are three grievance stages
available to adjudicators: the first to the Division
Chief, the second to the Director of the Adjudica
tion Directorate, and the third to the Deputy
Minister of the Commission (paragraph 12). These
grievance procedures are in addition to the section
31 protection mentioned earlier herein.
Under the category of "Administrative
Independence," Mr. Scott deposed that insofar as
the assignment of cases was concerned, it was his
experience that the exercise of discretion in assign
ment of cases was "normally, rationally based."
For example, a new adjudicator may not be put on
a case expected to be particularly complicated;
rather the section head may decide to assign a
more experienced adjudicator. (Paragraph 13.)
Mr. Scott also related (paragraph 15) that
adjudicators had regular meetings and training
sessions where they were up-dated on statutory
and regulatory changes as well as on the current
jurisprudence. He said that he understood that the
opinions accompanying the authorities were for
the purpose of "ensuring consistency in decision
making across Canada." He further deposed
(paragraph 15):
While we were never instructed to apply a particular interpre
tation, we were encouraged to accept an opinion in the interests
of consistency.
Conclusions on the issue of institutional indepen
dence
At the outset, I approach a decision on this issue
on the basis that the applicable test is the one. set
out by Mr. Justice de Grandpré in the Crowe case,
supra, as that test has been applied in the decision
of the Supreme Court of Canada in the case of
Valente v. The Queen."
Stating that test in the context of the present
proceedings, the question is whether a reasonable
and right minded individual, having informed him
self of the scheme whereby adjudicators are
appointed under the Immigration Act and of the
basis upon which they perform their duties there-
under, would be likely to conclude that an
adjudicator appointed under and acting pursuant
to that scheme, more likely than not, would decide
fairly the inquiries under the Immigration Act,
1976 over which he presided?
The answer to this question can only be deter
mined after an examination of the various areas of
concern identified by the appellant and summa
rized supra.
Dealing initially with the Commission's struc
ture and organization, I conclude from the evi
dence that while the case presenting officers and
adjudicators are both civil servants under the
direction of the same Minister, they operate in
separate and distinct divisions of the Commission.
Case presenting officers have no supervisory role
vis-Ã -vis adjudicators. They do not report to a
common superior and it is only at the apex of the
organization chart that their respective hierarchies
merge.
Insorfar as legal direction is concerned, while it
is true that adjudicators have access to the Com-
" [1985] 2 S.C.R. 673 at p. 685.
mission's legal advisors who also advise other
branches of the Commission, including the Case
Presenting Officers Unit of the Enforcement
Branch, it is also clear from the evidence that
adjudicators can and do seek advice on difficult
legal issues from lawyers on the staff of the
Adjudication Directorate who have no connection
or association with the Enforcement Branch.
On the subject of monitoring, there is evidence
that the monitoring practice focuses primarily on
how hearings are conducted. There is also the clear
and unequivocal evidence of former Adjudicator
Scott supra, that while performing his duties as an
adjudicator, he always felt that the final decision
on a case was his, and his alone to make. He also
made it clear that he felt no compulsion to take
direction from his superior officers. I think it is
fair to assume, in the absence of evidence to the
contrary, that other adjudicators are also well
aware of their responsibilities as quasi-judicial
officers.
With respect to security of tenure, adjudicators,
like other civil servants, have the protection afford
ed pursuant to section 31 of the Public Service
Employment Act. Additionally, they have the pro
tection of a three stage grievance procedure.
Dealing now with the fact that adjudicators are
members of the same bargaining unit as case
presenting officers, it is my opinion that, in the
absence of concrete evidence that adjudicators
have taken a common position with case present
ing officers giving rise to a reasonable apprehen
sion that adjudicators would not act fairly in the
conduct of inquiries, this situation represents a
neutral circumstance which does not give rise to
any apprehension one way or the other.
Insofar as the practice of appointing adjudica
tors to other positions on an acting basis is con
cerned, I fail to see how this practice, per se, could
possibly give rise to a reasonable apprehension of
lack of independence. Again there is not a shred of
evidence on this record in support of this submis
sion. Such an argument ignores the oath of office
taken by all adjudicators. It also ignores the
uncontradicted evidence of Mr. Scott to the effect
that the decisions made by him were made
independently of and without direction from
anyone else. When this evidence is considered in
light of the documentary evidence set forth
(Appeal Case, Volume II, pages 257-259) supra,
wherein the work of the Adjudication Directorate
is detailed, it seems clear that no inferences rela
tive to apprehension of bias or lack of indepen
dence can be drawn. I refer to the injunction that
immigration inquiries and release hearings must
be conducted "in accordance with the rules of
natural justice, the Immigration Act, 1976 and
regulations, and relevant case law." I also refer to
the reference to adjudicators "as independent
decision-makers."
Finally, dealing with the way in which cases are
assigned to adjudicators, the evidence is that the
assignment of cases is rationally based. Complex
cases are usually assigned to the more experienced
adjudicators. There is nothing on this record to
suggest that particular cases are assigned to par
ticular adjudicators, let alone, any evidence to
suggest that this Adjudicator was chosen to con
duct this inquiry on any basis other than the
rational basis referred to by Mr. Scott.
Based on these conclusions, I have the view that
reasonable persons, reasonably informed, would
view adjudicators appointed under the Immigra
tion Act, 1976 as being independent, keeping in
mind that they are, for the most part layman in
the hierarchy of quasi-judicial tribunals, that their
decisions are subject to judicial review by this
Court, and that they have all taken an oath of
office to "faithfully and honestly fulfil the
duties ..." devolving upon them.
I should comment, however, on one disturbing
circumstance related by former Adjudicator Scott
in paragraph 17 of his affidavit supra, where he
referred to one instance where a superior officer
discussed with him his high release and departure
notice record. However, when this circumstance is
considered in the total context of his evidence
supra, to the effect that he felt that the final
decision was always his to make and that he was
not required to take direction from his superiors in
the performance of his adjudicative functions, I do
not consider this one example of questionable con
duct to be fatal to the overall perception of
independence.
Counsel for the appellant relies on this Court's
decision in MacBain v. Lederman et al., supra. In
my view, that decision is easily distinguishable
from the present case. In MacBain, a complaint of
employment-related discrimination on the basis of
sex was filed against the appellant with the
Canadian Human Rights Commission. Pursuant
to the scheme of the statute, the Commission
designated an investigator to investigate the com
plaint. In due course, the investigator submitted a
report to the Commission. The Commission, being
satisfied that the complaint had been substantiat
ed, passed a resolution to adopt the investigator's
report.
The Commission then appointed a Human
Rights Tribunal from a panel of prospective and
temporary members to inquire into the complaint.
The Commission appeared before the Tribunal,
presenting evidence and making representations to
it, and, in effect, acting as prosecutor. The Tri
bunal found that the complaint was substantiated.
It was this decision by the Tribunal that was under
review. The Court, in striking down the Tribunal's
decision found that a reasonable apprehension of
bias was present because there was a direct con
nection between the prosecutor of the complaint
(the Commission) and the decision-maker (the
Tribunal), the former appointing the latter, and
because that connection easily gives rise to a suspi
cion of influence or dependency. There was the
added circumstance, that the appointment of tem
porary "judges" on a case-by-case basis left those
"judges" in a state of dependency insofar as their
career as judge was concerned. The system also
permitted the prosecutor (the Commission) to
choose the judge (the Tribunal members) to hear a
particular case.
I think it apparent that the circumstances at bar
are completely different from those in MacBain.
In MacBain, the prosecutor appointed the judge.
That is certainly not the case with the scheme
relative to adjudicators under the Immigration
Act, 1976. Adjudicators, as noted supra, are full
time civil servants whose employment is governed
by the provisions of the Public Service Employ
ment Act and the Immigration Act, 1976. They
are completely separated from the Enforcement
Division of the Commission which Division has no
control or supervision over the work of adjudica-
tors. Likewise, there is no influence or control by
the Enforcement Division over the assignment of
cases to Adjudicators. This duty is performed by
the Adjudication Directorate on a rational basis.
In sum, it is my view that the facts, the circum
stances and the legislative scheme in MacBain are
so vastly different from the case at bar as to render
the rationale of that decision completely inappli
cable to this case.
Far more relevant to issues in this appeal than
the MacBain decision, in my opinion, are the most
instructive remarks of Le Dain J. in Valente,
supra, where he said (at pages 688-689):
Of course, the concern is ultimately with how a tribunal will
actually act in a particular adjudication, and a tribunal that
does not act in an independent manner cannot be held to be
independent within the meaning of s. 11(d) of the Charter,
regardless of its objective status. But a tribunal which lacks the
objective status or relationship of independence cannot be held
to be independent within the meaning of s. 1 1 (d), regardless of
how it may appear to have acted in the particular adjudication.
It is the objective status or relationship of judicial independence
that is to provide the assurance that the tribunal has the
capacity to act in an independent manner and will in fact act in
such a manner ....
Although judicial independence is a status or relationship
resting on objective conditions or guarantees, as well as a state
of mind or attitude in the actual exercise of judicial functions
... the test for independence ... should be, as for impartiality,
whether the tribunal may be reasonably perceived as independ
ent. Both independence and impartiality are fundamental not
only to the capacity to do justice in a particular case but also to
individual and public confidence in the administration of jus
tice. Without that confidence the system cannot command the
respect and acceptance that are essential to its effective opera
tion. It is, therefore, important that a tribunal should be
perceived as independent, as well as impartial, and that the test
for independence should include that perception. The percep
tion must, however, as I have suggested, be a perception of
whether the tribunal enjoys the essential objective conditions or
guarantees of judicial independence, and not a perception of
how it will in fact act, regardless of whether it enjoys such
conditions or guarantees.
My appreciation of the Valente decision is that
while accepting and affirming the Crowe test, it
elaborates and, in some respects, extends that test.
In any event, I have the view that the statutory
scheme relating to adjudicators under the Immi
gration Act, 1976 meets the requirement articulat
ed in Valente that the perception of independence
and impartiality in a tribunal must include a per
ception that the tribunal enjoys the essential objec
tive guarantees of judicial independence. I reach
this conclusion on my analysis supra, of all of the
circumstances surrounding the operation of the
adjudication system under the Immigration Act,
1976.
The above analysis has convinced me that the
reasonable, right-minded and informed individual
in our test would perceive that the adjudicators
appointed and acting under the provisions of the
Immigration Act, 1976, possess the necessary
objective guarantees of judicial independence.
Accordingly, it is my opinion that the appellant's
submissions in respect of Institutional Indepen
dence must fail.
DECISION
For all of the foregoing reasons, I have conclud
ed that the appellant is not entitled to succeed in
respect of any of the four issues raised in this
appeal. It therefore follows that the appeal should
be dismissed with costs.
URIE J.: I agree.
MAHONEY 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.