T-4970-76
Francesco Caccamo (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Walsh J.—Toronto, January 17;
Ottawa, January 27, 1977.
Application for order prohibiting special inquiry by any
person connected with Department and for order directing
Minister to appoint a judge to hear the inquiry pursuant to s.
10(1)(c) of the Act — Public comment on applicant's position
by officer of Department before hearing — Whether reason
able apprehension of bias — Jurisdiction of Court to order
administrative action — Immigration Act, R.S.C. 1970, c. I-2,
ss. 10(1)(c), 18(1 )(a), 25 and 26.
Applicant claims that an interview given by the Director of
Information of the Department of Manpower and Immigration
to The Globe and Mail allegedly stating that the applicant had
been found to be a member of the Mafia by the Supreme Court
of Canada and that the Department must take the view that the
Mafia is a subversive organization would prejudice any person
directly or indirectly connected with the Department who
might conduct a special inquiry as to whether he is a person
described in section 18(1)(a) of the Act.
Held, both applications are dismissed. If the Director of
Information for the Department was charged with the conduct
of the special inquiry it could not be fair or impartial, but there
is no reasonable apprehension of bias on the part of any other
person directly or indirectly connected with the Department. In
any event, section 10(1 )(c) of the Act is an administrative
provision and the Court has no authority to give any directions
as to whether or not the Minister should apply it.
APPLICATION for writ of prohibition and order.
COUNSEL:
Edward L. Greenspan for applicant.
Paul Evraire for respondent.
SOLICITORS:
Greenspan, Gold & Moldaver, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application for a writ of
prohibition prohibiting L. Stuart, a Special Inqui
ry Officer, and any other immigration officer of
the Department of Manpower and Immigration or
any person directly or indirectly connected with
the Department of Manpower and Immigration
from conducting an inquiry seeking the deporta
tion of applicant from Canada on the ground that
he is a person described in section 18(1)(a) of the
Immigration Act', that is to say:
18. (1) Where he has knowledge thereof, the clerk or secre
tary of a municipality in Canada in which a person hereinafter
described resides or may be, an immigration officer or a
constable or other peace officer shall send a written report to
the Director, with full particulars, concerning
(a) any person, other than a Canadian citizen, who engages
in, advocates or is a member of or associated with any
organization, group or body of any kind that engages in or
advocates subversion by force or other means of democratic
government, institutions or processes, as they are understood
in Canada;
and for an order referring the matter to the Minis
ter of Manpower and Immigration so that he may
appoint a person not directly or indirectly connect
ed with the Department and more particularly a
County or Supreme Court Judge to act as a Spe
cial Inquiry Officer pursuant to section 10(1)(c) of
the Immigration Act for the purposes of these
proceedings. The said section 10(1)(c) reads as
follows:
10. (1) The following persons are immigration officers for
the purposes of this Act:
(c) where any circumstances arise in which the Minister
deems it necessary for the proper carrying out of this Act,
persons or classes of persons recognized by the Minister as
immigration officers.
The reason invoked in support of the application is
that the said L. Stuart or any other immigration
officer of the Department of Manpower and Immi
gration or any person directly or indirectly con
nected with the Department will be affected by
bias as a result of the publication and wide disti-
1 R.S.C. 1970, c. I-2.
bution of an article appearing in The Globe and
Mail on Wednesday, October 20, 1976, the day
before the inquiry was to commence in camera in
which Mr. Bruce M. Erb, Director of Information
for the Department of Manpower and Immigra
tion allegedly stated that the Supreme Court of
Canada had ruled that Caccamo is a member of
the Mafia and that the Immigration Department
must take the view that the Mafia is a subversive
organization.
Deportation proceedings were initiated by a
report dated October 8, 1976, by Mr. Michael
Rafferty, an immigration officer, made pursuant
to section 18(1)(a) of the Act, in which he stated:
I have to report that Francesco Caccamo, formerly of Italy,
is a person other than a Canadian citizen who engages in,
advocates or is a member of or associates with any organiza
tion, group or body of any kind that engages in or advocates
subversion by force or other means of democratic government,
institutions or processes as they are understood in Canada.
On the basis of this report a direction was issued
the same day pursuant to section 25 of the Immi
gration Act to a Special Inquiry Officer requiring
that an inquiry be conducted in the absence of the
public pursuant to section 26 of the Act to deter
mine if Francesco Caccamo fell within this section
of the Act. In due course Mr. L. Stuart directed
him to attend on Thursday, October 21, 1976, for
the purpose of the inquiry.
It is applicant's contention that Mr. Erb, as
Director General of Information Services for the
Department of Manpower and Immigration is
responsible directly to the Deputy Minister of the
Department in Ottawa and that by alleging public
ly in the press that Caccamo belongs to a subver
sive organization called the Mafia, and that this is
a subversive organization, he has created a situa
tion leading to a reasonable apprehension of bias
on the part of Mr. Stuart and any other employees
of the Department who it is suggested are depend
ent on the goodwill of their superiors in the
Department for promotion and advancement in the
service and that therefore the inquiry should be
conducted by a person not directly or indirectly
connected with the Department and more particu
larly a County or Supreme Court Judge.
Reference was made to all the well-known cases
on the question of bias. The often repeated saying
of Lord Hewart C.J. in Rex v. Sussex Justices, Ex
parte McCarthy [1923] All E.R. 233 at page 234
was quoted to the effect that "it is not merely of
some importance, but of fundamental importance,
that justice should both be done and be manifestly
seen to be done". Reference was also made to the
judgment of the Federal Court of Appeal in Re
Attorney General of Canada and Anti-dumping
Tribunal 2 in which Thurlow J. as he then was,
stated in the Federal Court of Appeal at page 754:
... a reasonable apprehension of bias imports more than a mere
fanciful suspicion; it requires what has been referred to as "a
reasoned suspicion" and I doubt that it differs in substance
from what has been referred to as "a real likelihood of bias".
Reference was then made to the judgment of Lord
Denning M.R. in Metropolitan Properties Co. v.
Lannon [1968] 3 All E.R. 304. Thurlow J. goes on
to state at page 755:
However, whether or not there is a difference between "a
reasonable apprehension of bias" and "a real likelihood of bias"
the test of a reasonable apprehension of bias is what has been
applied by the Supreme Court in Szilard v. Szasz [1955]
S.C.R. 3, and more recently in Blanchette v. C.I.S. Limited
(May 3, 1973, not yet reported) [since reported [1973] S.C.R.
833] and must therefore be regarded as the applicable test. In
the Szilard case Rand J. put the matter thus at page 6:
These authorities illustrate the nature and degree of busi
ness and personal relationships which raise such a doubt of
impartiality as enables a party to an arbitration to challenge
the tribunal set up. It is the probability or the reasoned
suspicion of biased appraisal and judgment, unintended
though it may be, that defeats the adjudication at its thresh
old. Each party, acting reasonably, is entitled to a sustained
confidence in the independence of mind of those who are to
sit in judgment on him and his affairs.
While this judgment was reversed in the Supreme
Court it was on other grounds, namely the signa
ture of the report by the Chairman whose impar
tiality had been attacked and that despite the fact
that he did not participate in the hearing.
2 [1973] F.C. 745.
In the case of The Committee for Justice and
Liberty v. The National Energy Board' decided by
the Supreme Court on March 11th, 1976, the
Court found that Mr. Marshall Crowe was dis
qualified from being a member of the panel on the
grounds of reasonable apprehension or reasonable
likelihood of bias. The Chief Justice in rendering
the majority judgment of the Court stated clearly
at pages 130-131 of his reasons for judgment:
Before setting out the basis of this conclusion I wish to
reiterate what was said in the Federal Court of Appeal and
freely conceded by the appellants, namely, that no question of
personal or financial or proprietary interest, such as to give rise
to an allegation of actual bias, is raised against Mr. Crowe.
In the case of Re United Association of Journey
men, etc. and Reynolds' bias was alleged to result
from a statement in a letter by the Board's Secre
tary. In rendering the judgment of the Alberta
Supreme Court (Appellate Division) Moir J.A.
stated at page 96:
Turning next to the letter of the secretary, it clearly deals
with the "alleged" practices adopted by the trade union and
merely says the matter is to go on to hearing. This does not, to
my mind, indicate any bias or predetermination on the part of
the members of the Board of Industrial Relations. Indeed there
is nothing in the decision of the Board that indicates that they
paid any attention at all to any irrelevant matter and indeed
that they stuck to the relevant issues of notice and of alternate
employment which were clearly and admittedly before them.
The author of the letter is not a member of the Board and did
not sit at the hearings.
In the case of Gooliah v. Reg. 5 which is directly in
point a majority decision of the Manitoba Court of
Appeal, after carefully examining the conduct of
the inquiry by a Special Inquiry Officer held that
there was bias in fact as he had failed to maintain
an impartial and judicial attitude and had par
ticipated in the contest to a degree which clearly
amounted to a denial of natural justice and went to
the very root of his jurisdiction. The Court did not
find, however, that there was any question by
reason of disability attaching to the Special Inqui
ry Officer as a result of sitting as judge in a
dispute in which the department of which he was
an officer was one of the parties. Section 11(1) of
the Immigration Act effectively shields him from
3 (1976) 9 N.R. 115.
' (1977) 69 D.L.R. (3d) 74.
5 (1967) 59 W.W.R. 705 (Man. C.A.).
any such charge. At pages 707-708, Freedman
J.A. stated:
Mr. Brooks is an officer of the immigration branch at Win-
nipeg. That is to say, he is an officer of the defendant depart
ment, one of the parties to the litigation. Ordinarily, in a
dispute between two parties, an officer of one of them may not
properly assume the role of judge. But in the present case the
statute permits that very thing. Sec. 11(1) of the Immigration
Act is in the following terms:
11. (1) Immigration officers in charge are Special Inquiry
Officers and the Minister may nominate such other immigra
tion officers as he deems necessary to act as Special Inquiry
Officers.
This statutory sanction effectively shields Mr. Brooks against
any charge that in serving as a special inquiry officer he was
disqualified by bias arising from or based upon interest.
Something more than mere interest must accordingly be
sought. This brings us to the second kind of bias namely,
actual bias in fact. It may exist independently of a person's
ordinary office. On the other hand, it may be related to and
grow out of that office. That, it is alleged, is what occurred
here. It is contended that from his strategic position as an
officer of the immigration branch at Winnipeg, Mr. Brooks
acquired a point of view on the case—favourable to the depart
ment, unfavourable to Mr. Gooliah—and that he brought this
point of view to his handling and disposition of the case in the
form of preconception, prejudgment, partiality, and bias.
Care must be taken to ascertain the precise nature of Mr.
Brooks's alleged breach of duty. That he may have known
about the Gooliah matter before he entered upon his quasi-judi
cial role as special inquiry officer may well be the case. If so, it
would not disqualify him; for the statute, in providing for the
nomination by the minister of such an immigration officer as
special inquiry officer, contemplated that very possibility. Nor
would the mere .pq ession of a tentative point of view on the
case when he waste the threshold of the inquiry disqualify Mr.
Brooks. Many a judge, from having read the pleadings and
related material in a case, finds himself in precisely that
position. But he recognizes that to perform his task properly he
must remain constantly in the grip of his judicial function and
not yield to his preconceptions or become captive to unexam-
ined and untested preliminary impressions. Against the special
inquiry officer it is urged that he allowed himself to do just
that; nay more. It is alleged that he brought to the inquiry a
closed mind; that he functioned not as judge but as prosecutor;
and that his conduct of the inquiry throughout its course visibly
stamps it as having been tainted with bias.
Again at page 709 the learned Judge states:
One further observation may be made before proceeding to a
consideration of the facts of the case. The bias or misconduct
alleged must be that of the special inquiry officer. Counsel for
the crown urged that a distinction be made between conduct of
some other member of the immigration department and con
duct of the special inquiry officer himself. The point is a valid
one, for the record does point to bias on the part of such other
member or members of the department. His or their bias would
not destroy the special inquiry officer's jurisdiction. That is to
say, it would not destroy it unless the bias infected him
personally and improperly influenced his handling of the inqui
ry. In examining the conduct of the special inquiry officer it
will be necessary to determine whether he functioned as a
judicial or quasi-judicial officer (which he was) or as a partisan
(which in law he was not entitled to be). He had a right to be in
the game but as a referee, and not, in the language of
Tritschler, C.J.Q.B., as a member of the opposing team.
In the case of Re Winnipeg Free Press Ltd. and
Newspapers Guild reported in (1974) 44 D.L.R.
(3d) 274, the Minister of Labour had publicly
expressed delight at the union's application for
certification and the hope that the matter could be
disposed of as quickly as possible. The Premier had
also expressed a somewhat similar opinion and it
was contended that the Board was influenced by
what was said and therefore biased. Refusing to
accept this contention to grant a writ of certiorari
to quash the certification of the union and its
bargaining agent for the employee, Wilson J. ren
dering the judgment of the Manitoba Court of
Appeal stated at page 280:
Whether deliberate or unguarded, comments by others upon
the conduct of matters then pending before a tribunal are, at
best, unhelpful. The same, of course, may be said of the
activities of those who may reasonably be supposed to be well
aware of the delicacy of a situation, yet who nevertheless
embark upon activities having for their end the provocation of
remarks which, at least by some, will be taken as inflammatory.
That homily apart, however, surely the offhand comment of
the Premier uttered under the circumstances described, is not
easily translatable into a form of intrusion upon the work of the
Board.
Its chairman apart, this body—the Board—is not a panel of
civil servants, of whom it might be thought their individual
opportunities for advancement might in some degree rest upon
acknowledgement of their merit by the Minister who would
initiate or approve promotion.
Applicant contends that it is quite unlike the
present situation where the Special Inquiry Offi
cers are civil servants whose individual opportunity
for advancement might in some degree rest upon
acknowledgment of their merits by the Minister. It
appears to me, however, to be a highly unflattering
viewpoint of Mr. Stuart and any other Special
Inquiry Officer to suggest that a proper inquiry
would not be conducted because they would be
reluctant to oppose the views expressed by an
information officer of the department in which
they are employed, to whom they do not report
and who has no supervision over them. It would
appear that this fear is unfounded at the present
time, and that applicant should at least await the
report of the Special Inquiry Officer, and the
transcript of the inquiry before him at which time
it can be ascertained as in the Gooliah case wheth
er he in fact conducted the inquiry in a fair and
impartial manner. Certainly the transcript of the
remarks of Mr. Stuart at the commencement of
the inquiry before him indicate that he would do
so; he too expressed his misgivings at the unfortu
nate comments made by Mr. Erb, if in fact he was
correctly quoted, before the commencement of the
inquiry. At the present stage of proceedings there
is nothing even to indicate that the result of the
inquiry will be unfavourable to applicant, and if it
is and he then feels that in the conduct of the
inquiry he has been denied natural justice he then
has recourse to the Federal Court of Appeal by
way of review under section 28 of the Federal
Court Act.
A somewhat similar situation was dealt with by
the Federal Court of Appc 11 in MacDonald v.
Public Service Commission 6 where the Public Ser
vice Commission appointed one of its officers as
sole member of the Appeal Board and it was
alleged that this would be indicative of bias and
contrary to natural justice, making a man judge in
his own cause. In analyzing the provisions of the
Public Service Employment Act Chief Justice
Jackett in rendering the judgment of the Court on
October 16, 1973, stated that when there is an
appeal against an appointment or proposed
appointment it is clear that to enable it to dis
charge its duty the Public Service Commission has
set up an organization of appeals officers to con
duct the necessary inquiry. He states at page 1085:
6 [1973] F.C. 1081.
In my view, that is what is contemplated by the statute and I
see no incompatibility at all between selection and appointment
officers on the one hand and appeals officers on the other hand
all operating under the authority of the Public Service
Commission.
and again on page 1086:
Under section 21 the subject matter of the inquiry to be made
by the Appeal Board is not an issue between the appellant and
the Commission, nor is it a lis in respect of which the Commis
sion has a position or a decision to defend against the complaint
of the appellant.
Returning to the facts of the present case it must
be pointed out that the applicant, Mr. Caccamo,
was convicted of possession of counterfeit money
and this conviction was upheld by the Ontario
Court of Appeal in a judgment dated January 26,
1973, in the case of Regina v. Caccamo and
Caccamo 7 which also upheld his conviction of
possession of a weapon for a purpose dangerous to
the public peace. In rendering judgment of the
Appeal Court, Chief Justice Gale in dealing with
Exhibit 5 which was reported to be one of the rare
statements or codes of the Mafia organization
stated at page 254:
The Court agrees that ex. 5 was admissible as an exhibit, but
the difficult question is this: Did the mere possession of ex. 5 by
the male accused so connect him with the organization about
which it is written as to permit the inference that his possession
of the gun was for a purpose dangerous to the public peace?
My brother McGillivray and I are of the opinion that the
presence of that document in that house, along with the gun,
was not so coincidental as to allow us to say that one can
completely divorce the association between the two. This was a
document that was indeed rare. In fact, the Crown expert, Dr.
Sabatino, stated there are apparently only four others existing
anywhere in the world. It is a document disclosing secret
agreements between persons who are members of a criminal
organization. It is in Italian. This was found in the house of an
Italian. The document and its possession by him were not
explained by the appellant. When you find that of the four
existing similar documents, two others were at one time in the
hands of known members of the Mafia, then we must conclude
that it was not a mere coincidence that it was found in this
man's house. That an accused person appears to be connected
with criminal activity or appears to be a member of an organi
zation prepared to resort to violence is, in our opinion, of
relevance to the charge here being considered, and the finding
of a document of the nature of ex. 5 is prima facie evidence
against him.
(1973) 11 C.C.C. (2d) 249.
In the Supreme Court to which a further appeal
was made on the question of the possession of a
dangerous weapon, the majority judgment ren
dered by de Grandpré J. stated$ at pages 807-808:
Possession of exhibit 5 by appellant having been established,
it remains to be seen whether, in the circumstances, the mere
possession of a document of this sort, in the absence of further
evidence connecting the appellant with a criminal organization,
did in law entitle the magistrate to draw the inference that
appellant was a member of such organization and therefore had
possession of the weapon for a purpose dangerous to the public
peace. In my view, this submission has been answered fully by
the majority in the Court of Appeal and I would adopt on this
point the reasons of Gale, C.J.O.
Both of these judgments were referred to in the
ill-advised interview of Mr. Erb with the reporter
of The Globe and Mail, and it is clear that even
without Mr. Erb's personal comment the views of
the learned judges referred to in these decisions
would also have been before Mr. Stuart or any
other Special Inquiry Officer charged with the
conduct of the examination.
It is applicant's contention that it remains to be
established that he is in fact a member of the
Mafia and secondly, that the Mafia is an organiza
tion advocating subversion by force or other means
of democratic government institutions or processes
as they are understood in Canada within the
meaning of section 18(1)(a) of the Immigration
Act and that Mr. Erb's expressed pre-judgment of
these issues prejudices applicant's chances of suc
cess when he raises them before the Special Inqui
ry Officer. If Mr. Erb were himself a Special
Inquiry Officer or a member of a board or com
mission constituted to decide this question I would
have no hesitation in finding that this argument
should prevail, but I cannot agree that because of
this unfortunate expression of opinion Mr. Stuart
and any other Special Inquiry Officer or other
person directly or indirectly connected with the
Department of Manpower and Immigration would
be so prejudiced and affected that he could not
conduct a fair and impartial inquiry in accordance
with the principles of natural justice and arrive at
his decision respecting deportation on the basis of
the evidence submitted to him at such inquiry.
There is therefore not in my view a reasonable
apprehension of bias. If applicant's argument were
8 [1976] 1 S.C.R. 786.
carried to its logical conclusion no inquiries could
ever be held under section 18 of the Act by a
Special Inquiry Officer since in all cases he is
acting pursuant to an order or direction by the
Minister by virtue of section 25 which incorporates
the conclusion that an inquiry is warranted and
therefore is an expression of opinion that the
person sought to be deported comes within one of
the subsections of section 18.
Finally it should be pointed out that section
10(1) (c) on which applicant relies, providing that
when circumstances arise in which the Minister
deems it necessary for the proper carrying out of
the Act, he may recognize other persons or classes
of persons as immigration officers, is purely an
administrative provision and this Court certainly
has no authority to make any direction or recom
mendation to the Minister to appoint a County or
Supreme Court Judge to act as a Special Inquiry
Officer in the present case, this being a matter for
the sole decision of the Minister himself.
For the above reasons the application for a writ
of prohibition prohibiting the special inquiry from
continuing is dismissed with costs.
ORDER
The application for a writ of prohibition is dis
missed with 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.