T-1769-89
Toronto Star Newspapers Ltd., Southam Inc.,
Paul Watson, and James Poling (Applicants)
v.
Joseph Kenney, Robert Reford, Mahmoud
Mohammad Issa Mohammad and The Attorney
General of Canada (Respondents)
and
Canadian Broadcasting Corporation (Intervener)
INDEXED AS: TORONTO STAR NEWSPAPERS LTD. V. KENNEY
(T.D.)
Trial Division, Martin J.—Ottawa, September 15
and 19, 1989; February 13, 1990.
Constitutional law — Charter of Rights — Fundamental
freedoms — Immigration Act, s. 29(3) providing inquiries in
camera unless established on application by member of public
conduct of inquiry in public not impeding inquiry and subject
of inquiry or family members not adversely affected — Media
application for access to credible basis hearing refused —
Charter, s. 2(b) guaranteed freedom of press versus individu
al's Charter, s. 7 rights — Assertion of right to access to
judicial or quasi-judicial proceeding under s. 2(b) satisfying
burden on applicants under s. 29(3) and onus shifting to person
seeking to exclude press — S. 29(3) not unconstitutional as
real discretion in adjudicator — Mandatory in camera hear
ings infringing freedom of press — S. 29(3) criticized as literal
interpretation placing impossible onus on applicant to prove
public hearing not detrimental — If absolute confidentiality
desired, credible basis inquiry should be administrative, not
judicial proceeding.
Immigration — Practice — Adjudicator denying applica
tions under Immigration Act, s. 29(3) to hold inquiry in public
based solely on submissions — Mere assertion of right to
access to judicial proceeding shifting onus imposed by s. 29(3)
to person seeking to exclude media — Although evidentiary
basis required to support Adjudicator's decision, evidence may
be received under conditions preventing its disclosure and
publication — S. 83.1 leave not required to attack constitu
tional validity of legislation although required to question
decision of Adjudicator under Federal Court Act, s. 18.
This was an application for an order quashing the Adjudica
tor's decision that the initial refugee hearing be held in the
absence of the applicants; prohibiting the Adjudicator from
continuing the inquiry until he has heard the application to
have the inquiry conducted in public; and directing the
Adjudicator to apply Immigration Act, subsection 29(3) in a
manner consistent with the Charter. Subsection 29(3) provides
that an inquiry shall be held in camera unless it is established
on application by a member of the public that the conduct of
the inquiry in public would not impede the inquiry and that the
subject of the inquiry or members of his family would not be
adversely affected if the inquiry were to be conducted in public.
Pursuant to applications to hold the hearing in public, the
Adjudicator decided to exclude the applicants on the ground
that the disclosure of certain evidence could prejudice the
safety of others. No evidence was called and the decision was
based solely on submissions. The applicants submitted that (1)
the Adjudicator erred in exercising his discretion solely upon
the submissions of counsel; (2) subsection 29(3) must be inter
preted to place the onus on the refugee claimant to prove that a
public hearing would impede it or adversely affect the immi
grant or his family, as placing the onus on the member of the
public would be an impossible onus; and (3) subsection 29(3)
should be declared unconstitutional as infringing upon Charter,
paragraph 2(b) guarantee of freedom of the press and access to
quasi-judicial proceedings. The Attorney General submitted
that a refugee claimant's Charter, section 7 rights were of a
higher order than the paragraph 2(b) rights of the applicants
or, alternatively that subsection 29(3) represented reasonable
limits imposed upon the applicants' paragraph 2(b) rights.
Counsel for the refugee claimant argued that since the onus is
upon the applicants to show that conduct of the inquiry in
public will not impede it, if they fail to call evidence to
discharge the burden, the Adjudicator can exercise his discre
tion under subsection 29(3) without hearing any evidence.
Held, the application to quash the Adjudicator's decision and
for prohibition should be allowed; the application for a declara
tion that subsection 29(3) of the Immigration Act is unconsti
tutional should be denied.
Leave to proceed under Immigration Act, section 83.1 is not
required where the constitutional validity of legislation is ques
tioned. Section 83.1 directs itself to Federal Court Act, section
18 proceedings questioning decisions of adjudicators.
Re Southam Inc. and The Queen (No. 1), stands for the
proposition that a provision in a statute which calls for manda
tory in camera hearings infringes upon the freedom of the press
guaranteed in Charter, paragraph 2(b) and is unconstitutional
unless the Crown can discharge the burden of establishing that
the limitation imposed would be demonstrably justified in a
free and democratic society. If subsection 29(3) were to be
applied literally, the burden of proof upon the applicants would
be impossible to discharge. An applicant cannot prove that no
member of a refugee claimant's family would be adversely
affected if the inquiry were to be conducted in public when he
does not have any idea who or where those family members are.
Likewise, the question of whether the conduct of an inquiry
would impede the inquiry depends upon the evidence which the
refugee claimant intends to lead. The concerns about fully
disclosing his reasons for claiming refugee status are uniquely
within the knowledge of the refugee claimant. If the burden of
proof placed upon the member of the public by subsection
29(3) is impossible to discharge, and if the exercise of the
Adjudicator's discretion in favour of conducting the hearing in
public is dependent upon the member of the public meeting
that burden, then in fact there is no discretion and subsection
29(3) would have to be declared unconstitutional. However, in
Pacific Press Ltd. v. Canada (Minister of Employment and
Immigration), the Federal Court of Appeal held that the
assertion of a right to access to a judicial or quasi-judicial
proceeding founded upon paragraph 2(b) of the Charter must
of itself satisfy that burden and shift the onus to the person
seeking to exclude the press. Given that interpretation of
subsection 29(3), the constitutional balance between the right
of access to the hearing and the protection of the rights of the
refugee claimant have been maintained by the restoration of a
real discretion in the adjudicator to determine on a case-by-
case basis whether or not the credible basis hearing should be
held in camera or in public.
While an evidentiary basis to support the Adjudicator's
decision is required, a person seeking to exclude the press ought
to be afforded the opportunity to present his evidence under
conditions that will prevent its disclosure and publication.
As to the submission that an in camera hearing is the only
way to encourage refugee claimants to make their claims, as
long as the screening process is in the nature of a judicial
procedure, it seems a contradiction in terms to suggest that the
fact of the application and the identity of the refugee claimant
be kept confidential. In order for a member of the public to
exercise the right to apply to have the hearing conducted in
public, both facts would have to have been given some publici
ty. If Parliament wants total confidentiality, the credible basis
hearing should be removed from the judicial process and be
conducted on an administrative basis.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(b), 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Federal Court Rules, C.R.C., c. 663, RR. 337(2)(b), 474
(as am. by SOR/79-57, s. 14).
Immigration Act, R.S.C., 1985, c. I-2, ss. 29 (as am. by
R.S.C., 1985 (1st Supp.), c. 31, s. 99), 83.1 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 19).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 29.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R.
(2d) 113; 34 C.R. (3d) 27; 33 R.F.L. (2d) 279 (C.A.);
Pacific Press Ltd. v. Canada (Minister of Employment
and Immigration), [1990] 1 F.C. 419 (C.A.).
CONSIDERED:
Southam Inc. v. Canada (Minister of Employment &
Immigration) (1989), 8 Imm. L.R. (2d) 12 (F.C.T.D.).
AUTHORS CITED
Canada, House of Commons, Standing Committee on
Justice and Legal Affairs, Minutes of Proceedings and
Evidence, Issue no. 25 (April 23, 1985), at pp. 25:17-
25:18 and Issue no. 29 (May 9, 1985), at pp.
29:22-29:23.
COUNSEL:
R. Juriansz and Paul B. Schabas for
applicants.
Marlys A. Edwardh for respondent Mah-
moud Mohammad Issa Mohammad.
Charlotte A. Bell and Debra M. McAllister
for respondent Attorney General of Canada.
G. Michael W. Hughes for intervener Canadi-
an Broadcasting Corporation.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for
applicants.
Ruby and Edwardh, Toronto, for respondent
Mahmoud Mohammad Issa Mohammad.
Deputy Attorney General of Canada for
respondent Attorney General of Canada.
Legal Services, Canadian Broadcasting Cor
poration, Toronto, for intervener Canadian
Broadcasting Corporation.
The following are the reasons for order ren
dered in English by
MARTIN J.: The applicants apply pursuant to
section 18 of the Federal Court Act [R.S.C., 1985,
c. F-7] for the following relief:
(1) an order granting leave to commence this
application, if necessary;
(2) an interim order prohibiting the respondent
Joseph Kenney from continuing with the inquiry
until this motion is finally determined;
(3) an order permitting this motion to be heard
on short notice;
(4) an order in the nature of certiorari and
prohibition quashing the decision of the
respondent Adjudicator, Joseph Kenney, made
on August 22, 1989, that the initial refugee
hearing into the status of Mahmoud Moham-
mad Issa Mohammad be held in the absence of
the applicants, and prohibiting the respondent
Joseph Kenney from continuing with the inquiry
until the applicants are permitted to be present;
(5) an order in the nature of mandamus direct
ing the respondent Adjudicator, Joseph Kenney,
to permit the applicants to be present at the
inquiry;
(6) an order pursuant to subsection 24(1) of the
Canadian Charter of Rights and Freedoms
directing that the respondent Adjudicator
Joseph Kenney conduct the inquiry and inter
pret and apply subsection 29(3) of the Immi
gration Act in a manner consistent with para
graph 2(b) of the Charter.
After hearing counsel on the first grounds of
relief made pursuant to section 83.1 of the Immi
gration Act, R.S.C., 1985, c. I-2 [as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 19] (the
"Act"), leave was granted to proceed with the
section 18 application attacking the August 22,
1989 decision of the respondent Joseph Kenney
(the "Adjudicator") excluding the applicants, as
representatives of the news media, from the cred
ible basis hearing proposed to be conducted under
the provisions of the Act and in accordance with
the provisions set out in section 29.
Counsel for the applicants argued that leave to
proceed under section 83.1 of the Act was not
required with respect to the relief requested in
paragraph (6) in so far as that relief raised the
issue of the constitutional validity of section 29 of
the Act. I am in accord with that submission.
Section 83.1 directs itself to proceedings under
section 18 of the Federal Court Act with respect to
decisions or orders made or matters arising under
the Immigration Act, or the Rules or Regulations,
and not with respect to the constitutional validity
of any particular section of the Act.
Accordingly, to the extent that the application
raises a question with respect to the constitutional
validity of section 29 of the Immigration Act, no
leave is required under section 83.1 of the Act. To
the extent that the application questions the deci
sion of the Adjudicator made under subsection
29(3) [as am. by R.S.C., 1985 (1st Supp.), c. 31, s.
99] of the Act, leave to appeal to this Court is
required and was granted by me on September 15,
1989.
The interim order prohibiting the continuation
of the inquiry before the Adjudicator sought by
the applicants was not pressed because, as I recall,
counsel informed me that the Adjudicator had
decided to postpone the continuation of the hear
ing pending the decision of this Court. Apparently
no order was made in response to that portion of
the application.
The application for an order permitting the
application to be heard on short notice does not
appear to have been addressed by counsel. As no
objection was made by counsel for the other par
ties and as the application proceeded in any event,
it can be taken that leave was given to proceed on
short notice.
Other motions were made by Canadian Broad
casting Corporation, in similar proceedings num
bered T-1783-89 and T-1799-89, as a result of
which leave was given to discontinue those pro
ceedings and to add Canadian Broadcasting Cor
poration as an intervener in this application and in
the Federal Court action number T-1798-89.
Finally, in the applicants' Federal Court action
number T-1798-89, a motion was filed by counsel
for the applicants at the opening of the proceed
ings on September 15, 1989 for an order pursuant
to Rule 474 of the Federal Court Rules [C.R.C.,
c. 663] for a determination of whether section 29
of the Act or a part thereof is inconsistent with
paragraph 2(b) of the 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]]
and therefore of no force and effect. I was
informed by counsel that the motion was filed at
the Toronto Registry on September 12, 1989 but
for some reason it did not find its way to Ottawa
and was not filed there until the opening of the
proceedings.
This motion in action number T-1798-89 also
asked for orders pursuant to Rule 474(2)
directing:
a) that the case upon which the question shall
be determined shall consist of the agreed state
ment of facts, filed, and
b) that the question be argued at the same time
and place as Federal Court proceeding
T-1769-89.
A second motion in this action was inadvertently
filed in proceeding number T-1769-89 which error
was corrected at the opening of the proceedings on
September 15, 1989. As the only relief in that
second motion to which counsel directed my atten
tion duplicated the last named relief referred to in
the Rule 474 motion, i.e. that the question to be
determined be argued at the same time as the
proceedings in T-1769-89, I can ignore that second
motion. The transcript of the hearing indicates (at
pages 10 to 13) that the Rule 474 motion was
granted. I have since reviewed the motion and the
applicable Rule and have concluded that I did not
have the authority to accede to that motion.
Rule 474 provides for applications for the deter
mination of points of law of which the late filed
application by counsel for the applicants was one.
Rule 474(2) [as am. by SOR/79-57, s. 14] pro
vides, in a mandatory way, what shall be done if
the Court orders that the question be so deter
mined. No consideration was given to the matter
set out in Rule 474(2). Although the transcript
indicates that I granted the motion to have the
Rule 474 application and the section 18 applica
tion heard at the same time, I was not authorized
to make such an order. Accordingly, if the parties
wish to proceed under Rule 474, the motion by the
plaintiffs in T-1798-89 will have to be renewed.
The parties to the action in T-1798-89 put for
ward an agreed statement of facts which would
apply to the Rule 474 motion in the following
terms:
The parties by their counsel agree that the facts upon which
the question of law to be determined under R. 474 should be
decided are the facts before this court in the application
bearing Court File No. T-1769-89,
to which counsel for the applicants, the Attorney
General for Canada and Mahmoud Mohammad
Issa Mohammad ("Mohammad") agreed. Counsel
for the intervener Canadian Broadcasting Corpo
ration indicated that it wished to accept and adopt
the facts set out in the factum of the plaintiffs in
Court action T-1798-89 to which it unilaterally
added further facts set out in paragraphs (2) and
(3) of its factum filed on September 15, 1989.
Similarly counsel for Mohammad, while accepting
the facts set out in paragraphs (1) to (12) of the
applicants' memorandum of fact and law, unilater
ally added an additional three pages of facts in her
memorandum of fact and law filed in the Toronto
Registry on September 12, 1989. Finally, while
agreeing that the facts upon which the Rule 474
determination should be made in the T-1798-89
action were to be the facts before the Court in the
T-1769-89 proceedings, counsel for the Attorney
General of Canada stated its own facts in her
memorandum of fact and law filed in both the
T-1798-89 and T-1769-89 proceedings at the open
ing of the hearing on September 15, 1989.
After examining the various statements of facts
it became apparent to me that the facts upon
which the determination of law was to be made
had not been crystallized to the extent generally
required under a Rule 474 determination. In fact,
in my view, there was no agreed statement of facts
to which the parties and the intervener had
subscribed.
Counsel for Mohammad advised that her under
standing of the agreement was:
... at the time of signing of that agreement that it was the
intentions of the parties that the facts in question were not
simply the facts as stated by the applicant, but would be all the
facts put forward as facts that might be found by Your
Lordship on the application. So they are the facts as set out by
the applicant, and also the facts relied upon by the respondents.
Because there was no reasonably concise state
ment of facts to which the parties and the interv-
ener have agreed, the Rule 474 motion for the
determination of a point of law in action number
T-1798-89 and the motion to have that determina
tion made at the same time as the determination in
the T-1769-89 proceedings were both premature
and, as already indicated, if the parties wish to
proceed in action T-1798-89, they will have to
renew their Rule 474 application.
The error on my part in granting the applicants'
motions in action T-1798-89 should not cause any
inconvenience to the parties because I propose, in
any event, to deal with the constitutional question
which in my view is raised in the applicants'
section 18 application in T-1769-89.
As already indicated, it was the decision of the
Adjudicator immediately preceding the credible
basis hearing of Mohammad to exclude the appli
cants and the intervener from the hearing that
provoked this application. Mohammad had been
the subject of an inquiry held pursuant to a report
made under section 27 of the Act. He had consent
ed to media representatives being present at that
inquiry subject to his claimed right to withdraw
that consent should unforeseeable matters arise
which, in his view, might jeopardize his safety or
that of his family. On December 15, 1988 the
inquiry adjourned since the Adjudicator had deter
mined that, but for Mohammad's claim to be a
Convention refugee, a removal or deportation
notice would be issued.
On August 21, 1989 the credible basis hearing
pursuant to section 29 of the Act was convened
before the Adjudicator and the respondent Robert
Reford, a member of the Refugee Division of the
Immigration and Refugee Board, to determine
whether Mohammad had a credible basis for his
claim to be a Convention refugee. When this hear-
ing began Mohammad consented to the presence
of certain members of the public but not to the
presence of media representatives. At this turn of
events applications to have the hearing conducted
in public were made by the applicants and the
intervener pursuant to subsection 29(3) of the Act.
Upon the applications being made the Adjudicator
informed the applicants the procedure in order to
determine whether the hearing would be held in
public would be by submission only and that no
evidence need be called. The relevant portions of
section 29 of the Act provide as follows:
29. (1) An inquiry by an adjudicator shall be held in the
presence of the person with respect to whom the inquiry is to be
held wherever practicable.
(2) At the request or with the permission of the person with
respect to whom an inquiry is to be held, an adjudicator shall
allow any person to attend an inquiry if such attendance is not
likely to impede the inquiry.
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera unless it is established to
the satisfaction of the adjudicator, on application by a member
of the public, that the conduct of the inquiry in public would
not impede the inquiry and that the person with respect to
whom the inquiry is to be held or any member of that person's
family would not be adversely affected if the inquiry were to be
conducted in public.
Counsel for Mohammad submitted that the
applicants bore the burden of satisfying the
Adjudicator on both the requirements of subsec
tion 29(3) i.e. of proving affirmatively to the satis
faction of the Adjudicator that the conduct of the
inquiry in public would not impede it and that
neither Mohammad nor any member of his family
would be adversely affected if the inquiry were to
be conducted in public.
She made the following submission to the
Adjudicator:
The next branch of Section 29(3) of obvious importance is
the question of adverse impact on Mr. Mohammad and his
family. I do not know of any authority which would confine the
notion of adverse simply to physical harm or physical safety
and I think you are entitled to look at adverse in the broadest
sense, from psychological harm to children, as well as physical
harm to individuals who may be connected to Mr. Mohammad
who are abroad. Approaching it from that point of view, there
are a number of facts which I wish to draw to your attention
and give you specific information which I would have to ask
that you proceed to hear me in camera so you can fully assess.
These facts have not been disclosed before and I do not—I
think it would be helpful for you to be aware of them.
The Adjudicator replied that:
We will take your request for in camera divulging of certain
facts under advisement.
Counsel for the applicants in his submission
said, among other things,
... we don't submit that there is any constitutional defect in the
legislation as it is drafted. However, the legislation must be
administered in conformity with the guarantees of the Charter.
It cannot be administered so as to infringe my client's right of
freedom of the press.
Before me counsel for the applicants restated
that argument in the following terms:
To argue that the adjudicator should have construed the statute
in a way not to infringe our rights and given—and acted as if
the language of the statute were different other than its clear
terms really is to say that the statute is defective constitutional
ly. He should have recognized that and acted accordingly. So it
doesn't become a different argument, it is a restatement of the
same constitutional argument.
And we add to that submission the argument that quite apart
from infringing the Charter right, simply at law he had a legal
duty to exercise his discretion judicially. It is true that he had
to be satisfied there would be no adverse effect, but at law there
was a duty on him to act judicially and that required an
evidentiary base.
Later, in the August 21, 1989 hearing, counsel
for Mohammad indicated that she accepted it as
her obligation to put the facts before the Adjudica
tor and added that, if there was any doubt as to
whether this would be sufficient and the Adjudica
tor wanted her to call evidence, she was prepared
to do so:
.... but some of the evidence I will call, obviously it will be my
request that I have to call it in camera, otherwise I can't really
proceed to call it.
On the following day, August 22, 1989, the
Adjudicator gave his decision. On the question of
the necessity of having to receive evidence in order
to form a basis for exercising his discretion, the
Adjudicator had this to say:
Mr. Juriansz, speaking for The Toronto Star and I think it
was The Hamilton Spectator, has suggested the procedural
aspects of 29(3) be broadened to allow possible cross-examina
tion of witnesses and thus far more intense scrutiny of the
access issue. We doubt this is what the Committee or Parlia
ment had in mind and we can find no support for such a
microscopic approach in the legislation, regulations or jurispru
dence. Such a procedure would have the effect of greatly
prolonging any inquiry or hearing which generated public
interest.
Accordingly, in the absence of specific legislative or regulato
ry language, we are not prepared to adopt the approach sug
gested and will decide the matter on the strength of the
submissions, arguments and case law only.
The Adjudicator accepted the position put for
ward by counsel for Mohammad, with respect to
the concern over her client's safety if the hearing
were held in public, in the following terms:
In this case, we have been presented with the novel argument
that a public hearing might impede the conduct of the claim
ant's case because counsel would be reluctant to divulge certain
facts. Such evidence, it is said, must be presented in camera
because its disclosure could prejudice the safety of others.
If public access were to be granted over the objections of the
claimant and harm resulted, there is nothing any Canadian
court could do to repair the damage. This is the whole thrust of
the issue. Subsection 29(3) is, in our opinion, a validly enacted
provision, carefully considered at Committee and adopted by
Parliament.
We accept the view that subsection 29(3) was expressly
created for protection of refugee claimants. We believe we have
a responsibility to give this consideration some priority. While
we cannot and do not dismiss lightly the right of the public to
know and the right of the media to ensure that this happens, we
must balance this against other equally compelling concerns.
It is our considered opinion that the concerns expressed by
Mr. Mohammad's counsel must prevail. We conclude Section
29(3) is a reasonable limit in these circumstances on the
Charter rights of the media and would be viewed as such by a
superior court.
Finally the Adjudicator cited with approval
from Southam Inc. v. Canada (Minister of
Employment & Immigration) (1989), 8 Imm. L.R.
(2d) 12 (F.C.T.D.) in which the Court found that
the Adjudicator in that case had properly decided
the onus lay with members of the public to meet
the burden of proof required under subsection
29(3) of the Act.
Before me counsel for the applicants submitted
that the Adjudicator erred in exercising his discre
tion in the absence of evidence and solely upon the
submissions of counsel. Furthermore he submitted
that subsection 29(3) must be interpreted to place
the onus on the refugee claimant to prove that a
public hearing would impede it or adversely affect
the immigrant or his family. To place the onus on
the member of the public seeking to have the
hearing conducted in public would be to place on
him an impossible onus and thus, while subsection
29(3) was drafted in form to give a discretion to
the Adjudicator to hold a public or in camera
hearing, in fact and in substance it gave no discre
tion to the Adjudicator because of the impossible
onus placed upon the person seeking a public
hearing.
Accordingly, counsel for the applicants submit
ted that subsection 29(3) should be declared
unconstitutional as infringing upon paragraph 2(b)
of the Canadian Charter of Rights and Freedoms
which guarantees freedom of the press and access
to quasi-judicial proceedings which infringement
could not be justified under the provisions of sec
tion 1 of the Charter.
Counsel for the Attorney General of Canada
defended the constitutionality of subsection 29(3)
of the Act on the basis of the need to create an
environment in which refugee claimants would feel
free to divulge all information relating to their
claims and to escape possible retribution against
themselves, should their claims be rejected, or
against their families in their country of origin,
should their claims be accepted. On these consider
ations counsel claimed that in camera hearings
were warranted. In her view the section 7 Charter
rights of her client were of a higher order than the
paragraph 2(b) rights of the applicants and would
have to give way to them.
Alternatively she submitted that subsection
29(3) represented reasonable limits imposed upon
the applicants' paragraph 2(b) Charter rights
because the concern for the safety of the refugee
claimant and his family were sufficiently impor
tant to warrant overriding the applicants' constitu
tionally protected right of access to quasi-judicial
proceedings and that the means chosen, an in
camera hearing to be determined at the discretion
of the Adjudicator, was proportional to the end
sought to be achieved.
Counsel referred to the legislative history of the
section in question. She noted that prior to 1985
the relevant portion of section 29 of the Act
[Immigration Act, 1976, S.C. 1976-77, c. 52]
provided as follows:
29. (1) An inquiry by an adjudicator shall be held in the
presence of the person with respect to whom the inquiry is to be
held wherever practicable.
(2) At the request or with the permission of the person with
respect to whom an inquiry is to be held, an adjudicator shall
allow any person to attend an inquiry if such attendance is not
likely to impede the inquiry.
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera.
Apparently it was determined that this virtual
mandatory in camera provision would offend
against the provisions of the Canadian Charter of
Rights and Freedoms guaranteeing freedom of the
press pursuant to paragraph 2(b) which freedom
included free access to judicial and quasi-judicial
hearings as determined by the Ontario Court of
Appeal in Re Southam Inc. and The Queen (No.
1) (1983), 41 O.R. (2d) 113. In order to avoid the
possibility of a declaration of unconstitutionality
on that account it was proposed that subsections
(2) and (3) of section 29 be repealed and be
replaced by the following subsection:
29....
(2) An inquiry by an adjudicator may, on application there-
for, be held in camera if it is established to the satisfaction of
the adjudicator that the person with respect to whom the
inquiry is to be held, or any interest of Her Majesty, as the case
may be, would be adversely affected if the inquiry were con
ducted in public.
As that provision came to be considered by
Parliament and its committees it became apparent
that the legislators were not satisfied that the
proposed amendment would give adequate protec
tion to the refugee claimant. The proposed amend
ment was withdrawn and the following amend
ment was made with respect to subsection 29(3)
[as am. by S.C. 1985, c. 26, s. 112] only, leaving
subsection 29(2) intact:
29....
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera unless it is established to
the satisfaction of the adjudicator, on application by a member
of the public, that the conduct of the inquiry in public would
not impede the inquiry and that the person with respect to
whom the inquiry is to be held or any member of that person's
family would not be adversely affected if the inquiry were to be
conducted in public.
The explanation given to the House of Com
mons Committee on Justice and Legal Affairs for
the proposed change was given, at the request of
the then Minister of Justice, by Mr. D. Martin
Low, General Counsel, Human Rights Law Sec-
tion, Department of Justice, on April 23, 1985,
[Issue No. 25] in the following terms [at pages
25:17-25:18]:
Mr. Heap, the genesis of this change lies in a decision of the
Ontario Court of Appeal, in a case called Re Southam No. 1.
This case had to do with in camera hearings under the Juvenile
Delinquents Act. There was an automatic exclusion of the
public which the Southam newspaper chain successfully chal
lenged on the basis that it infringed on their right of freedom of
the press and, in a sense, access to the courts.
We took a message from the decision; there have been a
number of other areas where automatic blanket exclusions of
the media from judicial proceedings have been examined to see
whether or not there was some clear justification for the
automatic exclusion in all cases. We believe there is a very high
onus to overcome if an automatic exclusion, which does not
depend on individual factual circumstances, is to be
maintained.
By May 9, 1985 it became apparent that the
legislators were not satisfied with the proposed
amendment because it appeared it would be too
easy for a member of the public to compel a public
hearing and thereby, in the minds of the legislators
at least, to jeopardize the safety of the refugee
claimant or his family. The following exchange
between Mr. Robinson and Mr. Speyer at the
House of Commons Committee on Justice and
Legal Affairs [Issue No. 29], at which the amend
ment, which is the present law, was proposed,
states quite clearly the intention behind the
amendment [at pages 29:22-29:23]:
Mr. Robinson: Mr. Chairman, I move that clause 112 of Bill
C-27 be amended by striking out lines 3 to 13 on page 77 and
substituting the following:
112. Subsection 29(3) of the Immigration Act, 1976 is
repealed and the following substituted therefor:
(3) Except as provided in subsection (2) an inquiry by an
adjudicator shall be held in camera unless it is established to
the satisfaction of the adjudicator on application by a
member of the public, that the conduct of the inquiry in
public would not impede the inquiry and that the person with
respect to whom the inquiry is to be held or any member of
that person's family would not be adversely affected if the
inquiry were to be conducted in public.
The Chairman: Is there any debate?
Mr. Robinson: Mr. Chairman, the purpose of the amend
ment is to respond in particular to the concerns expressed by
my colleague from Spadina, Mr. Heap, who is the official
spokesperson on immigration for the New Democratic Party.
He raised a concern that the amendment as originally proposed
might, in fact, cause undue hardship to applicants for refugee
status in that there may be information revealed publicly which
could jeopardize either their own personal position or the
position of their family in the country from which they were
fleeing.
I have discussed this matter with the Parliamentary Secre
tary to the Minister of Justice, and certainly this amendment is
a significant improvement on the bill as originally worded. I
just wanted to seek the clarification from the Parliamentary
Secretary that, in fact, the intent of this wording is that an
individual—presumably usually a member of the press, but it
could be any member of the public—who does want to have an
open hearing would have to show two things: first of all, that an
open hearing would not impede the inquiry, and second, that
there would be an affirmative obligation on the applicant to
show there would be no adverse impact either on the applicant
for refugee status or on that person's family. In other words,
they could not just say, well, I want to be here, I am not going
to impede this hearing, and then that is the end of the matter.
They have to go beyond that. There are two onuses which they
have to establish.
Mr. Speyer: Mr. Chairman, that is precisely what our intent
is. There has been extensive discussion with respect to this
section. I think it is important we come back to Mr. Robinson's
point a few moments ago.
The purpose of this exercise today, and of this bill, is to seek
to make sure existing sections of federal statutes conform to the
Charter of Rights. It is the perception of this government that
the sections we have here do not, and that is why we are
improving them. Mr. Heap asked the Minister of Justice
certain questions about legitimate concerns he has with respect
to refugee hearings.
I must speak for myself, and having discussed it with mem
bers from our side, we want to do nothing to jeopardize a
refugee at a hearing when he might be adversely affected by
testimony that is given; and it is important to understand the
nature of a refugee hearing and what the refugee has to
demonstrate. We do not want relatives of the refugees, or the
refugee himself, in any way to be put in peril as the result of a
constitutional amendment, as opposed to a policy amendment. I
give you that undertaking in terms of that is our intention; and
that is why I think your amendment is an improvement over
what was in the bill.
Counsel for Mohammad submits that the
reverse onus of proof in subsection 29(3) is simply
designed to recognize the important section 7
Charter rights of the refugee claimant and that
liberty and fair hearing issues are superordinate
values to the paragraph 2(b) Charter rights of the
press.
If, counsel for Mohammad submitted, the onus
is properly placed upon the applicants to discharge
the burden of showing that the conduct of the
inquiry in public will not impede it nor will it have
adverse effects upon the refugee claimant or his
family, then evidence is not essential in order to
support the Adjudicator's decision to hold an in
camera hearing. If the applicants call no evidence
to discharge the burden upon them then the
Adjudicator is entitled to rely upon that fact and,
because the burden upon the applicants has not
been discharged, to decide that the hearing will
not be open to the public.
In this case the parties seeking to have the
hearing conducted in public were given ample
opportunity to call evidence in order to discharge
the subsection 29(3) burdens but elected not to do
so. Instead the thrust of the applicants' case before
the Adjudicator was that the refugee claimant
should have called evidence to show why the hear
ings should be held in camera and that the appli
cants should have been given the opportunity to
test that evidence by cross-examination.
A fair summary of the position of counsel for
Mohammad in this respect would be to say that
evidence was not necessary for the Adjudicator to
exercise his discretion under subsection 29(3).
Submissions by her would be sufficient and in any
event the burden was on the applicants to show
positively why the hearing should be held in public
and not upon the refugee to show why it should be
held in camera. Finally, she submitted that there
was no obligation upon the Adjudicator to hear
any further details of Mohammad's reasons for
wanting an in camera hearing as tendered by his
counsel to be given in the absence of counsel for
the other parties, because the applicants had failed
to discharge the initial burden on them.
Southam (No. 1) stands for the propositions,
among others, that public access to the courts
must be considered implicit in the Charter guaran
tee of freedom of the press contained in paragraph
2(b), that a provision in the statute which calls for
mandatory in camera hearings infringes upon that
freedom and is unconstitutional unless the Crown
can discharge the burden of establishing that the
limitation imposed upon the freedom of the press
would be demonstrably justified in a free and
democratic society within the meaning of section 1
of the Charter.
In Southam (No. 1) the relevant statute pro
vided that all trials involving juveniles were to be
held in camera. The Court found that there could
be occasions when society's interest in the protec
tion and reformation of children who fell within
the definition of juvenile delinquents as defined by
the Juvenile Delinquents Act, R.S.C. 1970, c. J-2,
would supersede the right of public accessibility to
judicial proceedings but found that the blanket
prohibition against all accessibility cast too wide a
net. In that case the Court found that in order to
bring the two interests into constitutional balance
the Court should be given the discretion to exclude
the public from juvenile court proceedings when it
concludes, under the circumstances of any particu
lar case, that it was in the best interests of the
child or others concerned or in the best interest of
the administration of justice to do so.
I agree with Mr. Low, the representative of the
Department of Justice, that the proposed amend
ment to the Immigration Act, 1976 deleting sub
sections (2) and (3) of section 29 and substituting
29....
(2) An inquiry by an adjudicator may, on application there-
for, be held in camera if it is established to the satisfaction of
the adjudicator that the person with respect to whom the
inquiry is to be held, or any interest of Her Majesty, as the case
may be, would be adversely affected if the inquiry were con
ducted in public.
bring the matter within the Southam (No. 1)
principles so as to avoid the possibility of being set
aside as being unconstitutional on the grounds that
it represents a mandatory requirement for in
camera hearings.
I am not as confident that the literal reading or
meaning of the existing subsection 29(3) comes
within those principles. Counsel for the Attorney
General of Canada submits that subsection 29(3)
is constitutional because the in camera provisions
do not amount to an absolute exclusion of the
public but have a discretionary provision allowing
the Adjudicator to exercise his discretion on a case
by case basis to determine which of the credible
basis hearings, depending on the circumstances in
each case, should be conducted in public or should
be held in camera.
She acknowledges that the onus upon the appli
cants in this case and upon applicants generally to
prove those negative principles to the Adjudicator,
which would cause him to conduct the hearing in
public, represent a difficult onus to discharge but
points to the serious harm that might otherwise
befall the refugee claimant or his family if the
evidence given at the hearing was made public.
Counsel for Mohammad goes even further in
her submission that the principle of an in camera
hearing is the only appropriate one for, she says, it
is only with that prescription would there be a
proper encouragement to refugees to make their
claims and that is only by in camera hearings that
one can be assured that the fact of the application
itself and the identity of the person making the
application can be kept confidential.
I can appreciate the first part of Mohammad's
submission but not the second. If, as in some other
free and democratic societies, the refugee-claimant
screening process is done on an administrative
basis then it is true that the fact of the application
and the identity of the person making the applica
tion can, and according to some letters from the
representatives of those countries in the record of
the Attorney General of Canada, be and is kept
confidential. On the other hand when the screen
ing process is in the nature of a judicial procedure
it seems almost a contradiction in terms to suggest
that both the fact of the application and the
identity of the refugee claimant will, by reason of
section 29, be kept confidential. Subsection 29(3)
contemplates applications by the public to have
credible basis hearings conducted in public. In
order for a member of the public to be able to
exercise the right to apply to have the hearing
conducted in public both the fact of the applica
tion and the refugee claimant's identity would
have to have been given some publicity.
Perhaps, if Parliament wants to achieve the goal
of total confidentiality, it should remove the cred
ible basis hearing from the judicial process and
instead, as some other nations have done, relegate
it to the administrative side. However so long as
the hearings form a part of the judicial process
they must be subject to constitutional scrutiny on
that basis.
Counsel for the applicants submits, as already
indicated, that although subsection 29(3) is draft
ed in form to provide for the discretion principle
contained in the Southam (No. 1) decision, in
substance and in fact there is no discretion if the
Court applies a literal interpretation to it. In order
to save subsection 29(3) from constitutional death
he submits it must be interpreted in such a way so
as to have due regard for the freedom of the press
in its right, along with the right of the general
public, to have access to judicial proceedings.
His submission is, and I agree with him, that to
apply the literal meaning of subsection 29(3)
burden of proof upon the applicants in this case,
and in general, is to apply a burden which is
impossible to discharge. How can, for example, the
applicants prove to the satisfaction of the
Adjudicator that no member of Mohammad's
family would be adversely affected if the inquiry
were to be conducted in public when the applicants
may not, and in most cases will not, have any idea
who or where are the members of the refugee
claimant's family.
Likewise it is impossible for the applicants in
this case or any other case to prove that the
conduct of the inquiry in public would not impede
it. To some extent the answer to that question will
depend upon the evidence which the refugee claim
ant intends to lead. A refugee claimant from the
United States or the United Kingdom might not
have the same concerns about disclosing fully his
reasons for claiming refugee status as would a
refugee claimant from Northern Ireland, Iran or
China, but the factual basis for those concerns,
like the concerns for the safety of the refugee
claimant's family left in his country of origin, are
uniquely within the knowledge of the refugee
claimant and not the applicant from the public. By
that I mean to say it is not in all cases of refugee
claimants that there will be automatically gener
ated an environment in which the claimant cannot
feel free to disclose the reasons for his claimed
status and that the burden should be upon the
refugee claimant to establish the existence of an
environment which will diminish his ability to fully
disclose the facts which support his claim. Further-
more, as I understand the position of the Attorney
General of Canada, it is admitted there can be
some credible basis hearings which could be held
in public without impeding the inquiry or having
adverse effect upon the refugee claimant or his
family.
In my view, if the burden of proof or onus of
proof apparently placed upon the member of the
public by subsection 29(3) is, as a practical
matter, one which is impossible to discharge and,
if the exercise of the Adjudicator's discretion in
favour of conducting the hearing in public is
dependent upon the member of the public meeting
that burden or discharging that onus, then in fact
and in substance there is no discretion and subsec
tion 29(3) would have to be declared unconstitu
tional on the basis of Southam (No. 1).
The arguments before me all proceeded on the
basis that in the application of subsection 29(3)
the burden would be upon the member of the
public seeking to have the inquiry held in public to
establish by evidence which would be lead by the
applicant that its conduct in public would not
impede it nor would the immigrant or any mem
bers of his family be adversely affected if it were
conducted in public.
As I have indicated I would find subsection
29(3) to be unconstitutional if it were to be applied
in that manner and, in the absence of the recent
Pacific Press Ltd. v. Canada (Minister of
Employment and Immigration), [1990] 1 F.C. 419
(C.A.), I would have found that to be the manner
in which the subsection should be applied. In that
respect I would have been overruled by the Appeal
Division which found [at page 6] that, with respect
to the burden of proof,
... the assertion of a right to access to a judicial or quasi-judi
cial proceeding founded on paragraph 2(b) of the Charter
must, of itself, inferentially satisfy that slight burden and shift
the onus to the person seeking to exclude the press.
Given that interpretation of subsection 29(3) of
the Act it is my view that the constitutional bal
ance between the right of access to the hearing and
the protection of the rights of the refugee claimant
have been maintained by the restoration of a real
discretion in the Adjudicator to determine on a
case-by-case basis and on the particular circum
stances of each case whether or not the credible
basis hearing should be held in camera or conduct
ed in public. So long as subsection 29(3) is applied
in that manner I can see no reason for finding it to
be unconstitutional.
There remains the question of whether there
should have been an evidentiary basis for the
exercise of the Adjudicator's decision. A consider
able part of the argument before me was taken up
with this aspect of the matter, particularly by
counsel for Mohammad. It is common ground that
no evidence was called and that the Adjudicator
made his decision on the basis of submissions only.
In this respect, in the almost identical circum
stances which existed in the Pacific Press Ltd. case
(supra), Mahoney J.A. observed [at pages 6-7]:
His reason for holding the inquiry in camera was based solely
on undisputed submissions, not evidence, to the effect that
McVey's wife, resident somewhere in the United States, "is
suffering from terminal cancer and that the publicity issuing
from an inquiry may have a severe adverse affect on her".
Nothing was said of other measures that might reasonably be
taken to deny her access to the publicity. In my opinion, that
provided no proper basis for an exercise of discretion to close
the inquiry. Whatever freedom of the press entails, there must
surely be an evidentiary basis to support its lawful impairment
in a judicial or quasi-judicial proceeding. The Adjudicator
erred in law in making the order he did without evidence to
support it.
The problem faced by the Adjudicator arose directly out of
his refusal to conduct in camera the proceedings on the appli
cants' request that the inquiry be open. As a result of that,
McVey refused to lead evidence. On the assumption that in
camera proceedings in an inquiry under the Immigration Act
may be justified notwithstanding paragraph 2(b) of the Chart
er, it seems obvious that the person seeking to exclude the press
ought to be afforded the opportunity to present the necessary
supporting evidence under conditions that will prevent its dis
closure and publication. Experienced counsel will be able to
suggest a variety of acceptable measures to maintain confiden
tiality while allowing the evidence to be tested by adverse
interests.
So too in this case the Adjudicator did not seem
to distinguish between the credible basis hearing
which might or might not have to be held in
camera and the hearing of the application to have
the credible basis hearing conducted in public. His
difficulty in this respect was, I suspect, compound
ed by the assertion of counsel for Mohammad that
she was only prepared to lead evidence opposing
the application for a public hearing in camera and
in the absence of counsel for the applicants. This
latter condition sought to be imposed by counsel
for Mohammad was on the mistaken belief, since
acknowledged by counsel for Mohammad, that
counsel for the applicants could not give an under
taking of confidentiality which would be binding
as between themselves and their clients, the press.
In accordance with the foregoing reasons, an
order will be issued
a) quashing the decision of the Adjudicator
Joseph Kenney made on August 22, 1989,
directing that the initial refugee hearing into the
status of Mahmoud Mohammad Issa Moham-
mad be held in the absence of the applicants,
and prohibiting the Adjudicator from continuing
with the inquiry until he has heard the applica
tion on behalf of the applicants to have the
inquiry conducted in public in accordance with
the interpretation given to subsection 29(3) of
the Act by Mahoney J.A. in Pacific Press Ltd.
v. Canada (Minister of Employment and
Immigration).
b) refusing to declare that subsection 29(3) of
the Immigration Act is void and of no effect or
is unconstitutional.
Pursuant to paragraph 337(2)(b) of the Federal
Court Rules, counsel for the applicants are
requested to prepare a draft order and to submit it
to counsel for the respondents and the intervener
for approval as to its form and then to me for
review and, if accepted, for entry.
There will be no order as to costs.
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.