[1995] 3 F.C. 189
IMM-3301-94
Gerald Gervasoni (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Gervasoni v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, MacKay J.—Vancouver, May 23; Ottawa, June 22, 1995.
Citizenship and Immigration — Exclusion and removal — Immigration inquiry process — Judicial review of decision applicant person described in Immigration Act, s. 27(2)(a) and conditional deportation order — Inquiry held at Correctional Centre — Public excluded as insufficient notice for security checks — S. 29(1) requiring inquiry held in public — Adjudicator not adjourning inquiry to another venue — Absence of order excluding public not satisfying s. 29(1) — Purposes of public court met if interested members of public not unreasonably restricted from attending — No evidence of reasonableness of screening measures for purposes of Act — As s. 29(1) mandatory, decision set aside though no prejudice to applicant.
Administrative law — Judicial review — Excess of jurisdiction — Immigration Act inquiry — Act requiring inquiry conducted in public — Inquiry held at Correctional Centre — Public denied admission due to concerns for security of institution — Adjudicator aware inquiries to be open to public but nevertheless conducting inquiry — Whether erred in law in proceeding — Absence of order excluding public not satisfying requirement inquiry conducted in public — Meaning of “open court” — No evidence screening measures reasonable for Immigration Act purposes — Mandatory requirement inquiry open to public — Decision set aside though applicant not prejudiced.
This was an application for judicial review of an adjudicator’s decision that the applicant was a person described in Immigration Act, paragraph 27(2)(a) and consequent conditional deportation order based on admissions concerning a conviction of an offence committed in the United States which, had it been committed in Canada, would constitute an offence punishable under the Criminal Code by a maximum term of imprisonment of ten years or more.
The inquiry was held at the Vancouver Island Regional Correctional Centre in Victoria where the applicant was being detained. Certain members of the public, interested in attending the hearing, were not admitted because there was insufficient time to conduct security checks. The Adjudicator did not adjourn the inquiry in order to make arrangements to continue it in another venue to which the public had access.
Immigration Act, subsection 29(1) provides that an inquiry shall be conducted in public, and shall be held in the presence of the person with respect to whom the inquiry is to be held wherever practicable. The issue was whether the inquiry had been “conducted in public”.
Held, the application should be allowed.
Mere absence of an order by the Adjudicator to exclude the public or his affirmation that he had no objection to their attending does not mean that the inquiry meets the requirement of subsection 29(1). By referring to “the limited access by the public here today”, the Adjudicator implicitly acknowledged that the hearing was not conducted in public. The issue was not whether the Act required unlimited access, without regard for the conduct of those admitted or the integrity of the proceedings, but whether the inquiry is conducted in public if no member of the public is present and members of the public wishing to attend are excluded.
The words “wherever practicable” apply only to the requirement that the inquiry be held in the presence of the person concerned. Aside from the exceptional circumstance under subsection 29(2), there is no provision for consent, even by the subject of an inquiry, to a hearing being conducted otherwise than in public.
The purposes of an open court do not require unreasonable measures. They are met if interested members of the public are not unreasonably restricted from attending the inquiry, within the facilities available. There was no evidence as to the reasonableness for the purposes of the Immigration Act of the screening measures imposed.
The requirement that an inquiry be conducted in public was mandatory. The Adjudicator exceeded his jurisdiction when he proceeded with the inquiry when it was clear to him that it would not be conducted in public. The decision had to be set aside, even though the applicant had not been prejudiced by the Adjudicator’s decision.
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].
Criminal Code, R.S.C., 1985, c. C-46.
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(c.1)(i) (as am. by S.C. 1992, c. 49, s. 11), 27(2)(a) (as am. idem, s. 16), 29(1) (as am. idem, s. 18), (2) (as am. idem), (3) (as am. idem), 32.1(4) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12), 83(1) (as am. by S.C. 1992, c. 49, s. 73).
APPLICATION for judicial review of an adjudicator’s decision that the applicant was a person described in Immigration Act, paragraph 27(2)(a) and consequent deportation order, on the ground that the hearing was a nullity because it was not conducted in public as required by subsection 29(1). Application allowed.
COUNSEL:
Gary Botting for applicant.
Kathy Ring for respondent.
SOLICITORS:
Gary Botting, Victoria, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
MacKay J.: The applicant seeks judicial review of, and an order setting aside, the decision of an adjudicator, dated June 21, 1994, that the applicant is a person described in paragraph 27(2)(a) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 16)] (the Act) and for this reason to issue a conditional deportation order against him pursuant to subsection 32.1(4) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 12] of the Act.
The applicant is a citizen of the United States. He arrived in Canada in 1986. In 1993 an inquiry was commenced in regard to his status in Canada and following several adjournments it resumed on June 21, 1994 at the Vancouver Island Regional Correctional Centre in Victoria where the applicant was being held in detention under the Act. During the course of the hearing the applicant made certain admissions, including the admission that he had been convicted of second degree robbery in the state of New Jersey in 1982 for which he was sentenced to a term of seven years, and that offence, it was admitted, if committed in Canada, would constitute an offence punishable under the Criminal Code [R.S.C., 1985, c. C-46] by a maximum term of imprisonment of ten years or more. It was on the basis of the admissions of the applicant that he was found by the Adjudicator to be a person described in paragraph 27(2)(a) of the Act.
For the record I note that the application for judicial review in this matter also concerned the alleged failure of the Governor General in Council to make a determination in regard to the applicant under subparagraph 19(1)(c.1)(i) [as am. by S.C. 1992, c. 49, s. 11] of the Act, but this aspect was not argued when the application was heard in Vancouver on May 23, 1995 and any claim to relief related to that ground was abandoned, counsel for the applicant acknowledging that there was no record of a request for a decision under that provision of the Act.
The sole ground for contesting the decision of the Adjudicator concerns his decision to continue with the inquiry on June 21, 1994 after it was apparent that certain members of the public, interested in attending the hearing of the inquiry, were not admitted to the Correction Centre where the inquiry was conducted. This, it is argued, contravened the statutory responsibilities of the Adjudicator and was thus a matter beyond his jurisdiction in light of subsection 29(1) [as am. idem, s. 18] of the Act, which provides:
29. (1) Subject to subsections (2) and (3), an inquiry by an adjudicator shall be conducted in public, and shall be held in the presence of the person with respect to whom the inquiry is to be held wherever practicable, unless the person consents in writing to the inquiry being conducted without a hearing and in the person’s absence.
Subsections (2) [as am. idem] and (3) [as am. idem] of section 29 are not in issue in this case. Respectively, those provisions permit an Adjudicator to take measures and to make orders to deal with circumstances where there is a serious possibility that the life, liberty, or security of any person would be endangered by reason of an inquiry being conducted in public, or where, in those circumstances, it seems appropriate to ensure the confidentiality of any hearing. The Adjudicator himself made clear at the hearing that his determination was made without reference to circumstances dealt with in those provisions.
At the commencement of the inquiry on June 21, 1994, counsel for the applicant noted that certain people who wanted to attend the inquiry were not permitted to do so. He did not know who these people were, and he said he was not particularly concerned for his client’s interests, but he noted that the press had called him earlier and he had then indicated that he understood the hearing was to be open to the public. The Adjudicator said that he had been advised by staff of the institution that someone was present seeking to attend the inquiry and that certain persons had made inquiries the previous afternoon but none of them had been admitted to the premises because those concerned with security of the institution did not have sufficient time to carry out security checks on those who sought to be admitted. The Adjudicator said he had informed the staff of the institution that immigration inquiries are open to the public and members of the public have a right to attend, but he also said it was their decision, not his, whether, and on what security considerations, persons would be admitted to the institution.
Discussion of the circumstances continued. Counsel for the applicant suggested that perhaps the Adjudicator should hear from those who apparently wanted to attend, but the Adjudicator declined to hear them. He had no objection to their attendance, and none was raised by the applicant, and their inability to satisfy institutional officials that they be permitted to attend the inquiry was not a matter within the Adjudicator’s jurisdiction to resolve. The Adjudicator also declined to agree to a suggestion of the applicant’s counsel that the inquiry be adjourned and arrangements be made for it to be carried on in another venue where the public had access, including possibly other detention facilities where it appeared that inquiries had been conducted without similar difficulties. At one point the applicant himself intervened to say:
They would let them in here, but they have to call ahead of time. They didn’t call in enough time ahead of time.
The case presenting officer in attendance submitted that in his view the Adjudicator had discretion under the Act to continue with the hearing and that it would be a “horrific” job to transport the applicant to other facilities. Ultimately the Adjudicator said:
… under the circumstances, bearing in mind it’s administrative law that we’re dealing with here, and I’m required to conduct things efficiently and yet fairly, I think that in the circumstances of our case today, I think it would not be efficient to adjourn this matter and set it up to be held at a neutral site, and make arrangements for unlimited access by the public to the proceedings, so we’ll proceed today…. It’s not lightly that I make that ruling, but knowing that my main task is to conduct things efficiently and fairly, and knowing that to side with you in this argument meanings [sic] to say that never again will we do inquiries in institutions, I think I must rule that under the circumstances we will proceed with the limited access by the public under the circumstances here today.
For the applicant it is now argued that decision was not within the authority of the Adjudicator to make, and having erred in law in deciding to continue the inquiry in circumstances where members of the public did not have access to the hearing, contrary to the requirements of subsection 29(1) of the Act, the proceedings were a nullity at law. The decisions thereafter made in the course of those proceedings, including the decisions concerning the applicant’s right to be in Canada and the conditional exclusion order, were also said to be nullities in law. In other terms, it was argued that the requirement under subsection 29(1) of the Act for the inquiry to be conducted in public had not been met in the circumstances of this case and the inquiry and the decisions resulting in the course of it were not lawful.
The respondent argues that the inquiry was here held in accord with subsection 29(1) since the public was not excluded by any order made by the Adjudicator. Indeed, the Adjudicator made clear at the hearing that he had no objection to members of the public having access to the hearing and that he had so communicated to officials of the institution.
I am not persuaded that in the circumstances of this case mere absence of an order by the Adjudicator to exclude the public or his affirmation that he had no objection to their attending means that the inquiry would meet the requirement of subsection 29(1) that it be “conducted in public”. Here the Adjudicator was aware that no members of the general public were present although he knew one or more members of the public apparently desired access to the inquiry hearing. They were refused by those responsible for management of the facilities in which the inquiry was being conducted.
In my opinion the Adjudicator implicitly acknowledged that the hearing was not conducted in public. Despite noting that he had not excluded members of the public, by his comments and his ruling that the inquiry would continue notwithstanding the lack of access for members of the public the Adjudicator decided to continue the inquiry in circumstances where he knew some members of the public had been excluded and none were given access. In so doing he referred to the alternative, as he saw it, of conducting hearings with arrangements for unlimited access by the public as contrasted with “the limited access by the public here today”. In my opinion those alternatives were spurious, for there was not “limited access … today”, there was none. Moreover, the issue was not whether the Act required “unlimited access” in terms of numbers or without concern for conduct of those admitted or for the integrity of the inquiry’s proceedings. Rather the issue was whether the inquiry could be “conducted in public” where the Adjudicator was aware no member of the public was present and some, interested in attending, had been excluded.
The respondent argued that even if it be found that the hearing was not “conducted in public” in accord with the opening phrase of subsection 29(1), that subsection also conveyed discretion on the Adjudicator to proceed otherwise, in circumstances other than those provided for in subsections 29(2) and (3). That discretion, it is said, arises from the inclusion of the words “wherever practicable”. It may be useful to repeat in part subsection 29(1) which, aside from the references to subsections 29(2) and (3), essentially provides:
29. (1) … an inquiry by an adjudicator shall be conducted in public, and shall be held in the presence of the person with respect to whom the inquiry is to be held wherever practicable, unless the person consents in writing to the inquiry being conducted without a hearing and in the person’s absence.
It is the respondent’s submission that the words “wherever practicable” modify both the requirements here set out, i.e. that the inquiry be conducted in public and that it be held in the presence of the person with respect to whom the inquiry is to be held. I am not so persuaded. The words are included within the clause providing the latter requirement which clause is in toto set off by commas; the words “wherever practicable” are not immediately preceded by a comma as one might expect if they were intended to qualify more than the longer phrase in which they are included by commas. Moreover, the exceptional circumstance set out in the final clause concerning consent in writing by the person concerned to other arrangements does not include reference to conduct of the inquiry other than in public but only to conducting an inquiry without a hearing and in the absence of the person concerned. Aside from the exceptional circumstance under subsection 29(2) where the person concerned may apply for a hearing to be confidential on grounds that his or her life or security may be endangered by an inquiry conducted in public, there is no provision for consent, even by the person concerned as the subject of an inquiry, to a hearing being conducted otherwise than in public.
The parties referred to dictionary definitions of “open court”, “public trial”, and cases concerned with the admission of members of the press to judicial and other proceedings. Those are all helpful in underlining the accepted purposes of an “open court”, purposes which in my view Parliament intended to be served by the specified requirement in the Act that an inquiry be conducted in public. In my view, those purposes do not require unreasonable measures. They are met if interested members of the public are not unreasonably restricted from attending the inquiry, within the facilities available, and if representatives of the press have opportunity to attend, except in circumstances where they may be expressly excluded by Parliament in legislative provisions that do not offend 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 this case there is no evidence before me as to the reasonableness for purposes of the Immigration Act of the measures imposed for screening persons desiring to attend the inquiry. If, for example, the security considerations of the institution were apparently reasonable for their purposes, but effectively excluded members of the public from attending any immigration inquiry conducted within the walls of the institution, those would not be reasonable requirements for the purposes of the Immigration Act in light of the requirements of subsection 29(1). For the Minister’s representatives to schedule an inquiry within an institution in those circumstances would not be consistent with their responsibilities under the Act.
In my opinion the Act in specifying that an inquiry be conducted in public provides a mandatory requirement. But if it is not met, as I find was the circumstance in this case, is the result of an inquiry, that is not conducted in public, a nullity as the applicant here argues? That is a risk that those responsible for the arrangements and conduct of inquiry hearings face in any circumstances where they do not control access to their own hearings. A reviewing court would ordinarily quash and set aside the decisions made by the adjudicator where in the view of the court the inquiry was not conducted in public as required by the Act.
Are there exceptional circumstances when a court on judicial review would decline to set aside an order made at an inquiry that was not conducted in public? Here for example, there is no claim to unfairness in the process as it affected the person in question; the determinations of the Adjudicator were based on admissions of the claimant which are not said to have been unfairly obtained and which are not said to be withdrawn or likely to be denied at another inquiry if such be ordered. Are these circumstances where there is no prejudice to the person affected by the Adjudicator’s decision, and if that is so, is this Court warranted in declining relief of the exceptional nature here sought, to set aside the decision of the Adjudicator? If the Court so declined, would it not be ignoring the intent of Parliament, to provide for immigration inquiries to be conducted in public?
In my opinion, the Adjudicator, however laudable his intentions, exceeded his jurisdiction when he proceeded with the inquiry when it was clear to him that it would not be conducted in public, in the absence of any representative of the public when it was known some had indicated interest in attending but were not permitted to do so. The Act, in subsection 29(1) is mandatory, aside from exceptions specified by Parliament, or conceivably circumstances similar to those exceptions where for reasons related to the Immigration Act and its purposes a court might read a narrow discretion for the adjudicator under that provision. There are no such circumstances in this case.
For the reasons set out, the application is allowed. The decision of the Adjudicator is set aside and the matter is referred back to the adjudication division of the Immigration and Refugee Board, for reconsideration by a different adjudicator in accord with the law.
Counsel for the applicant suggested questions that, pursuant to subsection 83(1) [as am. by S.C. 1992, c. 49, s. 73] of the Act, might be considered for certification for consideration of the Court of Appeal. Counsel were not agreed upon those questions. In light of my disposition of the matter, which turns simply upon application of the Act to the facts as I find them, I decline to certify a question.