Judgments

[1996] 2 F.C. 976

A-658-94

Cam Hoa Huynh (Appellant) (Plaintiff)

v.

Her Majesty the Queen (Respondent) (Defendant)

Indexed as: Huynh v. Canada (C.A.)

Court of Appeal, Hugessen, Stone and MacGuigan JJ.A.—Ottawa, April 2 and 15, 1996.

Constitutional law — Charter of Rights — Life, liberty and security — Appeal from trial judgment answering in negative two questions of law: whether Immigration Act, s. 83 contravening Charter, ss. 7, 15 “on the facts of this case” — S. 83 permitting appeals from trial judgments on applications for judicial review only if Trial Division certifying serious question of general importance involved — Judicial review of decision applicant not Convention refugee dismissed — Charter, s. 7 not engaged — S. 83 not jeopardizing appellant’s right to life, liberty, security of person — Jeopardy to life, liberty, security of person caused by credible basis panel’s decision, not by judgment of Court sitting on judicial review — As no constitutionally guaranteed right of appeal, limitation on right of appeal not breach of principle of fundamental justice.

Constitutional law — Charter of Rights — Equality rights — Immigration Act, s. 83 permitting appeals from trial judgments on applications for judicial review only if F.C.T.D. certifying serious question of general importance involved — Not denying access to F.C.A. on basis of irrelevant personal characteristic, i.e. citizenship — Immigration Act necessarily dealing differently with citizens, non-citizens — Citizens having constitutionally protected right to enter Canada — Right of non-citizens to do so flowing from Immigration Act itself — Citizenship not irrelevant personal characteristic.

Administrative law — Judicial review — Immigration Act, s. 83 (permitting appeals from trial judgments on applications for judicial review only if F.C.T.D. certifying serious question of general importance involved) coming into force after credible basis panel finding appellant not Convention refugee, before judicial review application dismissed — That s. 83(1) subjecting right of appeal to issuance of certificate at time of rendering judgment not depriving appellant of right to know reasons underlying judgment before formulating question of general importance — On facts herein, appellant not establishing reasons for dismissing judicial review application raising new questions of general importance — Deprivation or limitation of right of appeal not breaching principle of fundamental justice as no constitutionally protected right of appeal — Notwithstanding not principle of fundamental justice judges not sit in review of own decisions, s. 83 not allowing trial judge to sit upon appeal against own judgments — S. 83 not breaching appellant’s vested rights to appeal — Vesting of right of appeal from trial judgment occurring only after proceeding giving rise to judgment commenced — Judicial review proceedings launched after s. 83 coming into force — Deprivation of vested rights not breach of principle of fundamental justice.

Citizenship and Immigration — Immigration practice — Immigration Act, s. 83, permitting appeals from trial judgments on applications for judicial review only if F.C.T.D. certifying serious question of general importance involved, coming into force after credible basis panel refusing Convention refugee claim but before judicial review of that decision — S. 83 not engaging Charter, s. 7 rights as neither jeopardizing right to life, liberty, security of person, nor breaching principles of fundamental justice — Not violating Charter, s. 15.

This was an appeal from the trial judgment which answered in the negative two questions of law: whether Immigration Act, section 83 contravenes Charter, sections 7 or 15 “on the facts of this case”. Immigration Act, section 83 (which permits appeals from decisions on applications for judicial review only if the Trial Division has certified that a serious question of general importance was involved and has stated that question) came into force after a credible basis panel had found that the applicant did not have a credible basis for his Convention refugee claim but before an application for judicial review of that decision was dismissed.

The appellant contended that section 83 breached his Charter, section 7 right not to be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. He argued that section 83 breached the principles of fundamental justice because it (a) violated the refugee’s right to know the case to be met; (b) acted as an unconstitutional privative clause; (c) allowed the judge to sit upon appeal of his own judgments; and (d) breached his vested rights to an appeal. He submitted that section 83 violated Charter, section 15 because it discriminates against non-citizens by denying them access to the Federal Court of Appeal.

The issues were (1) whether Charter, section 7 was engaged; (2) whether Immigration Act, section 83 violated section 7; and (3) whether section 83 violated Charter, section 15.

Held, the appeal should be dismissed.

(1) Section 83, on the facts of this case, did not jeopardize the appellant’s right to life, liberty or security of the person. There is no constitutionally guaranteed right of appeal. Since the provision of a right of appeal is not a requirement of fundamental justice, the attachment of conditions to a right of appeal will only breach Charter, section 7 if: (i) the result of the appeal may, by itself, place the appellant’s section 7 rights in jeopardy; and (ii) such conditions are contrary to the principles of fundamental justice. Neither of these requirements was met in this case. Section 83 did not deal with the appellant’s refugee claim. It operated to deny the appellant the right to appeal a decision of a superior court which decided that there were no grounds for intervening in the administrative tribunal’s decision that there was no credible basis to his refugee claim. The purpose of the judicial review was to ensure that the administrative tribunal had complied with the requirements of section 7. Any jeopardy to the appellant’s Charter, section 7 rights was caused by the credible basis panel’s decision, not by the Court’s judgment.

(2) (a) The appellant submitted that the requirement in subsection 83(1), subjecting the right of appeal to the issuance of a certificate by a Trial Division judge “at the time of rendering judgment”, deprived him of the right to know the reasons underlying the judgment before formulating the question of general importance for certification. On the facts herein, the appellant had not established that the reasons given for dismissing the application for judicial review raised some new question of general importance which could not have been foreseen. No application was made after judgment was rendered to request variation of the judgment and to certify the questions said to be newly revealed. The appellant did apply at the hearing for the certification of certain questions, but says that, because of language used by the Judge in another part of the reasons, he would now phrase the questions differently. The original questions were broader than, and therefore encompassed, those now proposed. The Judge addressed those questions and held that they did not raise issues of general importance.

(b) There is no constitutionally protected right of appeal and the deprivation or limitation of a right of appeal cannot by itself constitute a breach of the principles of fundamental justice.

(c) The appellant argued that section 83 makes the Trial Judge the sole arbiter of whether his decisions should be subject to appellate review, which is the equivalent of allowing the Trial Judge to sit in appeal of his own decisions and that this is contrary to the principles of fundamental justice. It is not a principle of fundamental justice that judges not sit in review of their own decisions. In some cases judges may be required to rehear and reconsider matters which they have already decided. The modern practice, whereby judges are prohibited from sitting in appeal of their own judgments, is based upon specific statutory provisions. Even assuming that the modern practice has been elevated to the level of a principle of fundamental justice, section 83 does not breach such principle. The section does not allow a judge to sit in appeal of himself. Section 83 does not mandate the judge to ask “should my judgment be appealed?”, but rather “does this case raise a serious issue of general importance?”.

(d) The appellant argued that the deprivation of what would otherwise have been a vested right of appeal is contrary to the principles of fundamental justice. It was not clear that the appellant ever had a vested right to an appeal. While his refugee claim was made prior to the coming into force of section 83, the judicial review proceedings attacking that decision were not launched until after that time. Any vesting of a right of appeal from the trial judgment could not have taken place until the proceeding giving rise to that judgment had been commenced. The credible basis panel proceedings could not in themselves give any right to an appeal to this Court. Furthermore, a deprivation of vested rights cannot by itself constitute a breach of the principles of fundamental justice. The appellant’s right of appeal was not protected by section 7.

(3) Section 83 did not violate Charter, section 15. Of necessity, the Immigration Act deals differently with citizens and non-citizens, including refugee claimants. Citizens have a constitutionally protected right to enter Canada, whereas the only right of non-citizens to do so flows from the Immigration Act itself. Accordingly, citizenship is not an irrelevant personal characteristic.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, s. 114.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15.

Criminal Appeal Act 1968 (U.K.), 1968, c. 19, s. 33 (as am. by 1981, c. 54, s. 152; 1987, c. 38, s. 15).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 16(4), 18 (as am. by S.C. 1990, c. 8, s. 4), 27 (as am. by R.S.C., 1985 (4th Supp.), c. 51, s. 11; S.C. 1990, c. 8, ss. 7, 78; 1993, c. 27, s. 214).

Federal Court Immigration Rules, 1993, SOR/93-22, R. 18

Federal Court Rules, C.R.C., c. 663, RR. 337(2),(5), 474 (as am. by SOR/79-57, s. 14), 1733.

Immigration Act, R.S.C., 1985, c. I-2, s. 83 (as am. by S.C. 1992, c. 49, s. 73).

Rules of the Supreme Court of Canada, SOR/83-74, R. 51 (as am. by SOR/91-347, s. 29).

Supreme Court Act, R.S.C., 1985, c. S-26, s. 28.

CASES JUDICIALLY CONSIDERED

APPLIED:

Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; R. v. Meltzer, [1989] 1 S.C.R. 1764; (1989), 49 C.C.C. (3d) 453; 70 C.R. (3d) 383; 41 C.R.R. 39; 96 N.R. 391; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; (1993), 102 D.L.R. (4th) 456; [1993] 4 W.W.R. 225; 78 B.C.L.R. (2d) 257; 81 C.C.C. (3d) 286; 20 C.R. (4th) 104; 14 C.R.R. (2d) 193; [1993] 1 C.T.C. 301; 93 DTC 5137; 153 N.R. 1; 45 W.A.C. 81; Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.); Cunningham v. Canada, [1993] 2 S.C.R. 143; (1993), 11 Admin. L.R. (2d) 1; 80 C.C.C. (3d) 492; 20 C.R. (4th) 57; 14 C.R.R. (2d) 234; 151 N.R. 161; 62 O.A.C. 243.

CONSIDERED:

Huynh v. Canada, [1995] 1 F.C. 633 (1994), 88 F.T.R. 60 (T.D.); Huynh v. Minister of Employment and Immigration (1993), 65 F.T.R. 11; 21 Imm. L.R. (2d) 18 (F.C.T.D.); Popov v. Minister of Employment and Immigration (1994), 75 F.T.R. 93; 24 Imm. L.R. (2d) 242 (F.C.T.D.); Grygorian v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1608 (T.D.) (QL); Illanko v. Canada (Solicitor General) (1995), 93 F.T.R. 284; 27 Imm. L.R. (2d) 106 (F.C.T.D.).

REFERRED TO:

Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 21 C.R.R. 76; 67 N.R. 241; 16 O.A.C. 81; McQueen v. Queen, The (1887), 16 S.C.R. 1; Director of Public Prosecutions v. Beard, [1920] A.C. 479 (H.L.); revg (1919), 14 Cr. App. Rep. 110 (C.C.A.).

APPEAL from trial judgment [[1995] 1 F.C. 633 answering in the negative two questions of law: whether Immigration Act, section 83 contravenes Charter, sections 7 or 15. Appeal dismissed.

COUNSEL:

David Matas for appellant (plaintiff).

Gerald L. Chartier for respondent (defendant).

SOLICITORS:

David Matas, Winnipeg, for appellant (plaintiff).

Deputy Attorney General of Canada for respondent (defendant).

The following are the reasons for judgment rendered in English by

Hugessen J.A.

Background

This is an appeal from a judgment of the Trial Division [[1995] 1 F.C. 633 which answered in the negative two questions of law which had been stated for preliminary determination pursuant to Rule 474 [Federal Court Rules, C.R.C., c. 663 (as am. by SOR/79-57, s. 14)]. The action itself is for declaratory relief. The stated questions [at page 658] are:

(1) Does section 83 of the Immigration Act contravene section 7 of the Canadian Charter of Rights and Freedoms on the facts of this case?

(2) Does section 83 of the Immigration Act contravene section 15 of the Canadian Charter of Rights and Freedoms on the facts of this case?

As is customary in proceedings under Rule 474, the parties have agreed to a statement of facts. That statement is as follows:

1. The Applicant is a citizen of Vietnam and a resident of Winnipeg, Manitoba, Canada.

2. Phuong Hue Huynh on July 19, 1983 sponsored his mother, father and his brother, the Applicant to come to Canada as landed immigrants.

3. The Applicant married Tu Phuong Vuong on November 13, 1989.

4. A Canadian visa office issued the Applicant a visa on June 13, 1991 to come to Canada as a member of the family class.

5. The Applicant arrived in Canada at Vancouver on October 8, 1991. A Senior Immigration Officer refused the Applicant landing on the ground that he was not a family class immigrant as a dependent [sic] of the principal applicant, his father.

6. An Immigration officer reported the Applicant to inquiry on October 18, 1991, on the ground that at the time of the examination the Applicant did not meet the requirements of the Act or regulations.

7. At an inquiry held March 11 and on May 25, 1992, the Applicant made a refugee claim in Winnipeg.

8. A credible basis panel found the Applicant not to have a credible basis for his claim. The adjudicator order [sic] the Applicant excluded. The Applicant appealed the exclusion order to the Appeal Division of the Immigration and Refugee Board which appeal is pending.

9. The Applicant sought judicial review of the decision of a “Credible Basis Panel” dated May 25, 1992, by way of an Application For Extension Of Time and an Application For Leave which were filed on October 30, 1992, and November 5, 1992, respectively;

10. The Federal Court Trial Division by order of the Honourable Madame Justice Reed dated February 11, 1993 granted the extension of time and granted leave and set the matter down for judicial review to be heard on April 27, 1993.

11. The Application for Judicial Review was subsequently adjourned and came on for hearing on May 25, 1993, before the Honourable Mr. Justice Rothstein of the Federal Court Trial Division who, after hearing argument, reserved judgment.

12. The Court thereafter rendered judgment on June 24, 1993, wherein the Application for Judicial Review was dismissed. The Court further declined to certify questions which had been submitted by counsel for the Applicant.

13. Section 83(1) came into force on February 1, 1993.

14. Before February 1, 1993, a person whose request for judicial review was denied by the Federal Court Trial Division could appeal to the Federal Court of Appeal as of right.

15. Counsel for the Applicant filed a Notice of Appeal from the judgment of this Court in 92-T-1772 by notice dated July 20, 1993.

16. The Chief Justice of this Court on July 23, 1993 directed that the Notice of Appeal could not be accepted for filing. The direction stated that it will be left to counsel for the Applicant to pursue the appropriate remedies. [Appeal Book, Appendix 1, pages 24-26.]

As can be seen the questions stated for the Court’s determination put in issue the constitutional validity of section 83 of the Immigration Act.[1] That section, which came into force on February 1, 1993, reads:

83. (1) A judgment of the Federal Court—Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court—Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.

(2) Where a judgment of the Federal Court—Trial Division is appealed to the Federal Court of Appeal pursuant to subsection (1), the appeal shall be commenced by filing a notice of appeal within fifteen days after the pronouncement of the judgment.

(3) A judge of the Federal Court—Trial Division may, for special reasons, extend the time referred to in subsection (2) for filing a notice of appeal.

(4) For greater certainty, a refusal of the Federal Court—Trial Division to certify that a serious question of general importance is involved in any matter is not subject to appeal.

Since the Trial Division of this Court has exclusive jurisdiction by virtue of section 18 of the Federal Court Act[2] by way of judicial review of the decisions of the various persons and bodies who are authorized to make decisions under the Immigration Act, the effect of section 83 is to limit any right of appeal to this Court and hence to the Supreme Court of Canada. The right of appeal is not denied outright but is made subject to a condition, the fulfilment of which depends upon judicial discretion and is beyond the appellant’s control. It is noteworthy that this limitation applies to all parties to the proceedings for judicial review, the Crown or the Minister as well as the immigrant or other person affected by the decision in question; it also applies whoever launches the application for judicial review and whatever the outcome.

In the questions stated for preliminary determination as well as in argument, both before the Trial Division and before us, the appellant invokes both section 7 and section 15 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] in support of his attack on the validity of section 83. At the hearing of the appeal, however, we did not call upon the respondent to make any submissions on the section 15 argument and it is convenient at the outset to deal summarily with that matter.

Section 15 of the Charter

Briefly stated, the appellant’s contention is that section 83 of the Immigration Act violates section 15 in that it causes him a disadvantage by drawing a distinction between himself and others on the basis of a personal characteristic, namely citizenship, and denying non-citizens like himself access to the Court of Appeal. While the general rule for citizens, and indeed all litigants in the Federal Court, is that Trial Division decisions are subject to appeal pursuant to section 27 [as am. by R.S.C., 1985 (4th supp.), c. 51, s. 11; S.C. 1990, c. 8, ss. 7, 78; 1993, c. 27, s. 214] of the Federal Court Act, decisions by way of judicial review of immigration matters, which generally concern non-citizens, cannot be appealed without obtaining a certificate from the Trial Division.

There is no merit to this contention. Of necessity, the Immigration Act deals differently with citizens and non-citizens (including refugee claimants). Citizens have a constitutionally protected right to enter Canada, whereas the only right of non-citizens to do so flows from the Immigration Act itself. Accordingly, citizenship is not an irrelevant personal characteristic. The words of Sopinka J., speaking for the Court, in Chiarelli v. Canada (Minister of Employment and Immigration)[3] are apposite:

Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens.

While the particular provisions under attack in Chiarelli were different, we could see no difference in principle between this case and what was decided there. We accordingly did not call for any argument from respondent on this point.

Section 7 of the Charter

The appellant makes four arguments in support of his contention that section 83 of the Immigration Act breaches his section 7 rights. He suggests that section 83 is not in accordance with the requirements of fundamental justice because it:

1) violates the refugee’s right to know the case to be met;

2) acts as an unconstitutional privative clause;

3) allows the judge to sit in appeal of his own judgments; and

4) breaches his vested rights to an appeal.

I shall deal with each of these questions in due course, but before doing so there is a preliminary matter which the appellant appears to take for granted but which seems to me to be of prime importance. That is the question of the appellant’s right to invoke section 7 of the Charter as a ground for attacking section 83 of the Immigration Act which, as stated, is simply a limitation on the right of appeal from a Trial Division judgment in a matter of judicial review. I accordingly turn first to that question.

Is section 7 engaged?

There is no dispute that the appellant, as a refugee claimant, is entitled to the protection of section 7. Indeed, there can be no doubt that the appellant’s rights to life, liberty and security of the person are potentially in jeopardy if his refugee claim is ultimately turned down and he is returned to his country of origin where he claims to fear persecution.

Section 83 of the Immigration Act, however, does not deal with the appellant’s refugee claim as such. At best, it is at two removes from that claim and the appellant’s possible deportation to his country of origin. In the particular circumstances of this case it has operated to deny the appellant the right to appeal a decision of a superior court which has decided that there are no constitutional or jurisdictional grounds for intervening in the decision of an administrative tribunal to the effect that there is no credible basis to his refugee claim. That latter decision must of course be made in compliance with the requirements of section 7; the purpose of the judicial review by the Trial Division was precisely to ensure that there was such compliance. The decision on that review, however, and a fortiori the decision on any appeal therefrom, cannot place the appellant’s section 7 rights in jeopardy.

I take it to now be settled law that there is no constitutionally guaranteed right of appeal. Counsel for the appellant attempts to find a suggestion of such a right in Mills v. The Queen,[4] but that argument was effectively put to rest by McIntyre J., speaking for the Court, in R. v. Meltzer:[5]

The argument in support of this ground, simply put, is that the rights protected or guaranteed in the Charter are of such significance that an appeal should be available where relief under the Charter is denied at first instance. In short, what is asserted is that the Charter makes obligatory a right of appeal from any legal proceeding at first instance.

At common law there were no appeals. All appeals have been the creature of statute. It has not been argued that the Criminal Code in any of its appeal sections (602, 603, 605, 618, 719, 748) provides specifically for an appeal from a refusal of a Charter remedy. Therefore, if any such specific right exists it must be found in the Charter. The question facing the Court then is: Does the Charter, because of the importance of the interests it protects, provide an appeal against a refusal of a Wilson application for review despite the fact that neither the Criminal Code nor any other legislative enactment so provides? I assume—but do not decide—for the purposes of dealing with this question, that s. 8 of the Charter is engaged by the interception of private communications.

I would say at the outset that in my view the Charter does not provide such an appeal. In argument, the appellant referred to what I said in Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 958-59:

Again, it must be observed that the Charter is silent on the question of appeals and the conclusion must therefore be that the existing appeal structure must be employed in the resolution of s. 24(1) claims. Since the Charter has conferred a right to seek a remedy under the provisions of s. 24(1) and since claims for remedy will involve claims alleging the infringement of basic rights and fundamental freedoms, it is essential that an appellate procedure exist. There is no provision in the Code which provides a specific right to appeal against the granting, or the refusal, of a Charter remedy under s. 24(1), but appeals are provided for which involve questions of law and fact. The Charter, forming part of the fundamental law of Canada, is therefore covered and the refusal of a claim for Charter relief will be appealable by a person aggrieved as a question of law, as will be the granting of such relief by the Crown. The appeal will follow the normal, established procedure. When the trial is completed, the appeal may be taken against the decision or verdict reached and the alleged error in respect of the claim for Charter relief will be a ground of appeal ….

I would, however, add that with the approval of two more of the seven judges sitting upon the appeal, I went on to say in Mills v. The Queen, at p. 959:

The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602, supra) prohibiting procedures on appeal beyond those authorized in the Code.

The refusal of an application for a remedy or relief based on the Charter may well raise a question of law which could be the basis of an appeal under the Criminal Code against conviction or acquittal. Accepting this principle, however, will not assist the appellants in this case. They do not seek to appeal against a conviction under the Criminal Code appeal provisions. They seek to launch an interlocutory appeal concerning the admissibility of evidence which may be adduced at a future trial. There is no statutory basis for such an appeal and the law, as expressed in Mills v. The Queen, supra, and s. 602 of the Criminal Code, does not permit interlocutory appeals in criminal cases. I am, accordingly, satisfied that the Court of Appeal was correct in holding that it had no jurisdiction to entertain this interlocutory appeal.

The law, as I understand it, was concisely stated by La Forest J. in Kourtessis v. M.N.R.:[6]

Appeals are solely creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. There is no inherent jurisdiction in any appeal court. Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature.

Finally, on this point, I would note the words of Linden J.A., speaking for this Court in Luitjens v. Canada (Secretary of State)[7] where the impugned provision was not, as in this case, a mere limitation but rather an outright denial of the right of appeal:

It is permissible for Parliament to constitutionally deny the right to appeal. The principles of fundamental justice do not mandate endless hearings and appeals at every stage of a process.

But if it is competent for Parliament in constitutional terms to deny a right of appeal altogether, how can it be incompetent for it to attach to such right of appeal a condition such as that found in section 83 of the Immigration Act? The paradox of the appellant’s position was noted, although in another context, by Sopinka J. in Chiarelli, supra, at page 742:

The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing ex gratia does not expand Parliament’s constitutional obligations. I need not resolve this issue in this case because I have concluded that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed.

In my view, since the provision of a right of appeal is not a requirement of fundamental justice, the attachment of conditions to a right of appeal will only run afoul of section 7 if it can be shown:

a) that the result of the appeal may, by itself, place the appellant’s section 7 rights in jeopardy; and

b) that such conditions are contrary to the principles of fundamental justice.

Neither of these requirements has been met in the present case.

The questions posed for the determination of this Court are, in their terms, limited to “the facts of this case”. Those facts are that the appellant has had a full hearing of his refugee claim before the credible basis tribunal and that that hearing has been found by a judge of the Trial Division to comply with the requirements of fundamental justice. If the appellant’s right to life, liberty and security of the person are in jeopardy, such jeopardy is brought about by the decision of the credible basis tribunal and not by the judgment of the Court. The Judge of the Trial Division [Huynh v. Minister of Employment and Immigration (1993), 65 F.T.R. 11], sitting in judicial review of that decision, tested it for its compliance with the requirements of fundamental justice, and, while he refused to intervene, he cannot, in any sense, be said to have confirmed it; his powers are confined to setting aside the decision and sending the matter back for a new hearing or, as in fact happened, declining to intervene. An appeal of that judgment cannot possibly have any adverse impact upon the appellant’s right to life, liberty and security of the person: at worst, from the appellant’s point of view, this Court could simply dismiss the appeal and thus leave matters exactly where they were.

If, going beyond the facts of this case, one were to hypothesize a situation where the appellant had been successful in the Trial Division and had obtained the setting aside of the decision of the credible basis tribunal, the case might be different. An appeal to this Court by the Minister could result in the setting aside of the Trial Division judgment and the restoration of the tribunal’s decision which might result in the appellant’s deportation. In such circumstances, however, I would point out that the conditions in section 83 of which the appellant complains would then serve to operate in his favour, for it would be the Minister who would have to overcome them before he could launch an appeal. Such conditions, therefore, cannot be said to breach the appellant’s section 7 rights.

I accordingly conclude, on this aspect of the matter, that the appellant has failed to show that section 83 of the Immigration Act has, on the facts of this case, put his right to life, liberty or security of the person in jeopardy.

In theory, this finding makes unnecessary any detailed study of the four grounds of attack urged by the appellant since all of those grounds relate to the second branch of the test i.e. the alleged non-compliance of section 83 with the requirements of fundamental justice. However, since the matter was fully argued both here and below, and since one at least of the questions raised by the appellant has given rise to some apparent diversity of views in the Trial Division, I think it appropriate that I should deal with them and I now do so.

The right to know the case to be met

It will be recalled that subsection 83(1) subjects the right of appeal from the Trial Division to this Court to the issuance of a certificate by the Trial Division judge “at the time of rendering judgment”. The appellant submits that this requirement deprives him of the right to know the reasons underlying the Trial Division judgment before formulating the question of general importance upon which he seeks certification from the Trial Judge.

In order to appreciate this submission, it is necessary to have in mind, apart from section 83 itself, the requirements of Rule 18 of the Federal Court Immigration Rules, 1993 [SOR/93-22]:

18. (1) A judge shall not render judgment in respect of an application for judicial review without first giving the parties an opportunity to make a request that the judge certify that a serious question of general importance as contemplated by section 83 of the Act is involved.

(2) A party who requests that the judge certify that a serious question of general importance is involved shall specify the precise question.

(3) For the purposes of this Rule, an application for judicial review includes an application for judicial review of a decision of a visa officer.

There would appear to be no doubt that section 83 and Rule 18 together can, in some circumstances, create difficulties for an appellant, notably where a judge’s reasons for disposing of the judicial review application turn on a question which was not argued fully or at all at the hearing. That was apparently the situation in the case of Popov v. Minister of Employment and Immigration,[8] where Reed J. gave judgment from the Bench on grounds which seem to have come as a surprise to counsel. She agreed to hear an application for certification (which she ultimately declined to grant) on the basis that the formal judgment had not yet been entered:

It is clear that the oral rendering of an order is the order of the Court, Carlile v. Her Majesty the Queen (1993), 161 N.R. 139 (F.C.A.). At the same time, insofar as s. 83(1) of the Immigration Act is concerned I do not think that the phrase “at the time of rendering judgment” should be interpreted as having occurred until after the judgment has been pronounced (or recorded) in written form pursuant to rule 337(2). That is particularly so in a case such as the present where the reasons for which certification is sought could not reasonably have been foreseen by counsel until after the court’s decision was rendered. For the reasons given I am of the view that I have jurisdiction to certify a question in this case.

A somewhat different approach, which consisted of anticipating the problem rather than reacting to it, was adopted by Joyal J. in the case of Grygorian v. Canada (Minister of Citizenship and Immigration).[9] At the conclusion of his reserved reasons for order, he said:

At the hearing of this application, it was mentioned by counsel that the issue before the Court might merit the certification of a question to the Federal Court of Appeal. If that still holds true, the parties might agree as to the text of it or otherwise advise the Court of their position. Two weeks from the date of these Reasons for Order should give counsel sufficient time to respond, after which I will issue a formal Order.

While he did not expressly invoke the provisions of paragraph 337(2)(b) of the Rules (which apply equally to the case of oral reasons as in Popov, supra), Joyal J. might well have done so. Those provisions read:

Rule 337. (1) …

(2) When the Court has reached a conclusion as to the judgment to be pronounced, it shall, in addition to giving reasons for judgment, if any,

…

(b) at the end of the reasons therefor, if any, and otherwise by a special declaration of its conclusion, which may be given orally from the bench or by a document deposited in the Registry, indicate that one of the parties (usually the successful party) may prepare a draft of an appropriate judgment to implement the Court’s conclusion and move for judgment accordingly (which motion will usually be made under Rule 324).

A very different view was expressed in Illanko v. Canada (Solicitor General).[10] There, Simpson J. declined to entertain an application for certification of a question and variation of her judgment based on Rule 1733. She said:

I have considered counsel’s submission but have concluded that I am not able to agree with the rationale expressed in Popov. In my view, if a case raises a broad question that transcends the interests of the immediate parties, it is certain that such a question will be identified by counsel when they read the Board’s decision when they prepare an application for leave and for judicial review or during oral argument. It is important to recall that the decision being “rendered”, as described in s. 83(1) of the Act, is a decision on a judicial review application. This means that the decision is made on the record before the Board. The facts of the case do not change after the Board’s decision. It is therefore inconceivable that a serious question of general importance which transcends the interests of the parties could remain invisible until after a decision is made on a judicial review application.

While I have some sympathy with the views expressed by Simpson J. and agree that in the great majority of cases (of which, as we shall see, this is one) any potential question of general importance will be obvious to both counsel and the Court long before the hearing is concluded, I think that she was wrong to say that it was “certain” that such would always be the case and “inconceivable” that a question could remain invisible until after the reasons were given. It can and does happen that judges will decide a case on a point that was not taken by counsel; perhaps the most common example would be where, after the hearing, a higher court renders a decision which, in the judge’s view, is dispositive of the matter. The judge’s interpretation of the higher court decision may, in its turn, conceivably raise a question of general importance. Where that is the case, it would seem to me that the provisions of Rule 1733 could appropriately be invoked. Better still, if there is any uncertainty at all as to whether his grounds for decision may raise a new question which was not foreseeable by counsel, or if the claimant is unrepresented, the preventive technique employed by Joyal J. in Grygorian , supra, should be employed.

Returning to the facts of the present matter, however, it is my view that the appellant has simply failed to make out any case that the reasons given by Rothstein J. for dismissing his application for judicial review raise some new question of general importance which could not have been foreseen.

In the first place, and at the most basic level, I note that the record before us does not disclose that any application was made to Rothstein J. after his judgment had been rendered for the purpose of asking him to vary that judgment and to certify the alleged newly revealed questions. Surely, it is incumbent on the appellant to exhaust the remedies available to him before claiming that his Charter rights have been infringed.

There is more, however. It is clear from the reasons of Rothstein J. that the appellant did apply at the hearing for the certification of certain questions. Amongst them are the following [at page 15]:

1. Is there a duty to question a person and receive an answer on the language that they need?

2. Does the question of reasonably effective assistance of counsel arise from the manner in which counsel presented the case?

The appellant now says, however, that because of certain language used by Rothstein J. in another part of those same reasons he would now put the questions differently. With regard to the first of such questions relating to the language of interpretation, the appellant now says:

42. If the appellant had been given an opportunity to make submissions on certification after having seen the reasons and before the formal order was entered, the appellant would have asked for certification of this question: “Is the right of a claimant to be offered translation in his or her language of choice violated when the claimant is not offered translation in his or her language of choice, but the translation appears from the transcript to be adequate?” [Memorandum of argument of the appellant.]

With regard to the second of such questions relating to the alleged inadequacy of representation by counsel before the credible basis panel, the appellant now says:

37. If the appellant had been given an opportunity to make submissions on certification after having seen the reasons and before the formal order was entered, the appellant would have asked for certification of this question: “Is it the law that if counsel does not adequately represent his/her client in a refugee claim, then, in any but the most extraordinary case, that is a matter between client and counsel and cannot result in an overturning of a decision on appeal or judicial review?”. [Memorandum of argument of the appellant.]

While it is the case that the questions now proposed by appellant are somewhat more detailed and specific than those originally put before Rothstein J., that fact alone indicates to me that the broader questions originally proposed encompass the whole of the substance of the narrower questions which are now suggested. Furthermore, since Rothstein J. addressed those very questions in his reasons and concluded, in the exercise of his discretion, that they did not raise issues of general importance, it is impossible to see how the appellant’s present formulation might have caused him to reach a different conclusion. Accordingly, the appellant has failed to convince me that he has suffered any actual deprivation of his right to know the case to be met.

Section 83 as an unconstitutional privative clause

The appellant’s argument on this head, if I understand it correctly, is that section 83, by potentially depriving him of access to this Court and to the Supreme Court of Canada, is in breach of the principles of fundamental justice. That argument is, of course, precisely the same as the one which I have examined earlier in these reasons and receives the same answer: there is no constitutionally protected right of appeal and the deprivation or limitation of a right of appeal cannot, by itself, constitute a breach of the principles of fundamental justice.

Appeal from own judgment

This is an aspect of the rule against bias or reasonable apprehension thereof. The appellant argues that the effect of section 83 is to make the trial judge the sole arbiter of whether or not his own decisions should be subject to appellate review. In the appellant’s view, this is the equivalent of allowing the trial judge to sit in appeal of his own decisions which, it is said, is contrary to the principles of fundamental justice. I do not agree.

In the first place, there is no case that settles that it is a principle of fundamental justice that judges not sit in review of their own decisions. Indeed, in some cases, of which subsection 337(5) of the Rules and Rule 1733 of this Court and Rule 51 of the Rules of the Supreme Court of Canada [SOR/83-74 (as am. by SOR/91/347, s. 29)] are examples, judges may be required to rehear and reconsider matters which they have already decided. Even when dealing with appeals from one level of court to another, there are recorded instances of judges sitting in appeal of their own judgments[11] and, indeed, reversing them.[12] The modern practice, whereby judges are prohibited from doing so, is based entirely upon specific statutory provisions of which subsection 16(4) of the Federal Court Act and section 28 of the Supreme Court Act[13] are examples.

I am prepared to assume, however, that the modern practice has now been elevated to the level of a principle of fundamental justice; even so section 83 of the Immigration Act is not in breach of such principle. The section does not allow a judge to sit in appeal of himself; it does not even ask him to decide whether or not his judgment should be reviewed. The appellant’s argument is based on the premise that a judge to whom a request for certification is made will deliberately breach his oath of office and answer a question which has not been put to him. The inquiry which section 83 mandates the judge to make is not, as the appellant misleadingly suggests, “should my judgment be appealed?” Rather, it is “does this case raise a serious issue of general importance?” That is an entirely different question and one which experience would seem to indicate judges of the Trial Division have no difficulty answering in the affirmative in appropriate cases.

Before leaving this branch of the argument, I would simply note that the duty imposed by section 83 on a judge of the Trial Division is remarkably similar to that imposed on the Court of Appeal in the United Kingdom as a precondition to obtaining leave to appeal to the House of Lords in criminal matters. Section 33 [as am. by 1981, c. 54, s. 152; 1987, c. 38, s. 15] of the Criminal Appeal Act 1968 [(U.K.), 1968, c. 19], reads as follows:

33.—(1) An appeal lies to the House of Lords, at the instance of the defendant or the prosecutor, from any decision of the Court of Appeal on an appeal to that court under Part I of this Act or section 9 (preparatory hearings) of the Criminal Justice Act 1987.

(2) The appeal lies only with the leave of the Court of Appeal or the House of Lords; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(3) Except as provided by this Part of this Act and section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), no appeal shall lie from any decision of the criminal division of the Court of Appeal.

While by no means conclusive, the longstanding existence of this provision in the United Kingdom is, at the very least, some evidence that it is not contrary to the principles of fundamental justice in that country.

Vested rights

The appellant does not argue that he has vested rights in an appeal to this Court for it is clear from the text of the amending statute that it was intended to and does apply to this case.[14] The argument is rather that the deprivation of what would otherwise have been a vested right of appeal is itself contrary to the principles of fundamental justice. In my view, it is without merit.

In the first place, it is not clear to me that the appellant can claim ever to have had any vested right to an appeal. While it is true that his refugee claim was made prior to the coming into force of section 83, his judicial review proceedings attacking that decision were not launched until after that time. Any vesting of a right of appeal from a judgment of the Trial Division could not take place in my view until the proceeding giving rise to that judgment had been commenced. The administrative proceedings before the credible basis panel could not in themselves give any right to an appeal to this Court.

In the second place, and even more important, it is in my view now clear that a deprivation of vested rights cannot, by itself, constitute a breach of the principles of fundamental justice. In Cunningham v. Canada,[15] McLachlin J., speaking for the Court said:

I do not find it useful to ask whether the liberty interest was “vested” or “not vested”. The only questions which arise under the Charter are whether a protected liberty interest is limited, and if so, whether that limitation accords with the principles of fundamental justice. To qualify an interest as “vested” or “not vested" does not really advance the debate, except in the sense that a vested interest might be seen as being more important or worthy of protection than one which is not vested. In that event, I think it better to speak directly of the importance of the interest, rather than introducing the property law concept of vesting.

Applying the same principle to this case, the question is not whether the appellant had a vested right of appeal, but rather whether such right of appeal is one which is protected by section 7. For the reasons given, I have already answered that question in the negative.

Conclusion

For all the foregoing reasons, I would dismiss the appeal with costs.

Stone J.A.: I agree.

MacGuigan J.A.: I agree.

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