A-64-77
Francesco Caccamo (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Le Dain J. and
MacKay D.J.—Toronto, April 28; Ottawa, May
30, 1977.
Immigration — Prerogative writs — Appeal from dismissal
of application for order prohibiting special inquiry by any
person connected with Department and for order directing
Minister to approve a judge to hear the inquiry pursuant to s.
10(1)(c) of the Immigration Act — Public comment on appel
lant's position by officer of Department before hearing
Whether reasonable apprehension of bias — Immigration Act,
R.S.C. 1970, c. 1-2, ss. 10(1), 18(1)(a), 25.
Thè Director of Information of the Department of Manpow
er and Immigration allegedly stated in an interview quoted by
The Globe and Mail that the appellant had been found, by the
Supreme Court of Canada to be a member of the Mafia and
that the Department had to take the view that the Mafia is a
subversive organization. The appellant claims that, as a result
of that statement, any person directly or indirectly connected
with the Department who might conduct a special inquiry as to
whether the appellant is a person described in section 18(1)(a)
of the Immigration Act, would be prejudiced. The application
for prohibition was dismissed by the Trial Division.
Held, the appeal is dismissed. The alleged expression of
views could be linked equally to a departmental Special Inquiry
Officer and to a special non-departmental appointee because a
Special Inquiry Officer is a member of a Department subject to
the Minister and a person from outside the Department would
be chosen by the Minister. Therefore, if the principle were
applied strictly and according to the appellant's contention,
there is no person having statutory authority to conduct the
inquiry who would not be subject to that disqualification. Even
where actual bias in the sense of a monetary interest in the
subject of the litigation involved, if all eligible adjudicating
officers are subject to the same potential disqualification, the
law must be carried out notwithstanding that potential dis
qualification. If this rule is to be applied where actual bias is
involved, it must also be applied where there is no actual case of
bias but only a "probability" or reasonable suspicion arising
from the impact of the unfortunate statements on the public
mind. Even assuming all the other factors in favour of the
appellant, because it is necessary to carry out the legal require
ments of the statute, a Special Inquiry Officer is not disquali
fied from acting by reason of the circumstances established in
this case.
Held also, per Le Dain J. and MacKay D.J.: The circum
stances of this case do not give rise to a reasonable apprehen
sion of bias. The statement was no more than a statement why
the Department has instituted deportation proceedings. It is
this initiative on the part of the Department to which the
statement is directed and not the result that may be anticipated
from the inquiry.
The Judges v. Attorney-General for Saskatchewan (1937)
53 L.T.R. 464, applied.
APPEAL.
COUNSEL:
Edward L. Greenspan for appellant.
P. Evraire for respondent.
SOLICITORS:
Greenspan, Gold & Moldaver, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division [[1977] 2 F.C. 438]
dismissing an application for a writ of prohibition
and for other relief.
The appeal was heard at Toronto on Thursday,
April 28 and, after hearing counsel for the appel
lant, this Court gave judgment dismissing the
appeal, without calling on counsel for the respond
ent, on the understanding that the reasons for the
Court's judgment would be put in writing and
deposited at a later date. These are my reasons.
It is common ground that a report was made by
an immigration officer on October 8, 1976, against
the appellant under section 18(1)(a) of the Immi
gration Act, R.S.C. 1970, c. I-2, which provision
reads as follows:
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 that that report reads, in part:
... 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 associated 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.
It is also common ground that, pursuant to section
25 of that Act, a direction was issued to a Special
Inquiry Officer for an inquiry based on that report
and that the appellant was notified to appear, on
October 21, 1976, before Special Inquiry Officer
L. Stuart for that inquiry.
On Wednesday, October 20, 1976, the day
before the date fixed for the inquiry, an article
appeared in a Toronto newspaper, The Globe and
Mail, concerning the matter. That article read in
part:
The Ontario Court of Appeal and the Supreme Court of
Canada subsequently upheld Judge Moore's decision. Both
appeal courts ruled that the document was a genuine Mafia
document and that by its possession Caccamo was a member of
the Honored Society of Calabria.
B. M. Erb, director of information for the Department of
Manpower and Immigration, has confirmed that the federal
Government has begun deportation proceedings against Cac-
camo, now that court actions have ended.
Mr. Erb said Caccamo has been ordered to appear before a
special inquiry officer tomorrow when a deportation hearing
will be held.
The Government is alleging that Caccamo is a prohibited
immigrant under Section 5 (L) of the Immigration Act,
because he belongs to a subversive organization—the Mafia.
"SUBVERSION BY FORCE"
The act prohibits immigrants who are "persons who are or
have been ... members of or associated with any organization,
group or body of any kind concerning which there are reason
able grounds for believing that it promotes or advocates ...
subversion by force or other means of democratic government,
institutions or processes, as they are understood in Canada
Caccamo, who was born in Siderno, Calabria, came to
Canada as an immigrant on April 5, 1959. He has not become
a Canadian citizen. The court was told at his trial that he had
been employed with an aluminum building products company
for 10 years and was a foreman. Caccamo now owns an
aluminum building products company of his own in Nortl
York.
Mr. Erb said Caccamo would normally have domicile ii
Canada, which means that the Immigration Department canno
deport an immigrant after he has lived in Canada for five years
But, he said, the act sets no time limit for immigrants whc
contravene the Narcotics Act or who are proved to bi
subversives.
He said the Supreme Court of Canada ruled last year tha
Caccamo is a member of the Mafia and the Immigration
Department must take the view that the Mafia is a subversive
organization.
Mr. Erb said the Immigration Department has obtaine<
deportation orders against two or three organized crime figure;
from the United States on the grounds that they belonged to
subversive organization. He said the criminals did not appea
the orders and left Canada.
A picture purporting to be a picture of the appel.
lant was published with the article.
Mr. Stuart opened the inquiry on October 21
1976, but, after a number of intermediate adjourn•
ments, finally adjourned it until February 21
1977.
On December 15, 1976, an originating notice
was filed in the Trial Division, reading in part:
TAKE NOTICE that an application will be made by counsel or
behalf of the Applicant before the presiding Judge, Courtroom
19, at the New Court House, 361 University Avenue, Toronto
Ontario on Monday the 20th day of December, 1976, at thf
hour of 11 o'clock in the forenoon or so soon thereafter a;
counsel may be heard for a Writ of Prohibition prohibiting Mr
L. Stuart, a Special Inquiry Officer, and any other Immigra
tion Officer of the Department of Manpower and Immigratior
or any person directly or indirectly connected with the Depart
ment of Manpower and Immigration from hearing this matter;
AND FURTHER for an Order referring this matter to thf
Minister of Manpower and Immigration so that the Minister
may appoint a person not directly or indirectly connected wit'
the Department of Manpower and Immigration, and mar(
particularly, may appoint a County or Supreme Court Judge t<
act as a Special Inquiry Officer pursuant to Section 10(1)(c) 01
the Immigration Act, R.S.C. c. I-2 for the purposes of thesf
proceedings, or for such further or other Order as to thi;
Honourable Court may seem just.
On January 27, the Trial Division delivered judg
ment with reference to this application, reading.
"The application for a writ of prohibition is dis
missed with costs". This appeal is from that
judgment.
The appellant summarizes his position on the
appeal in the memorandum filed in this Court as
follows:
It is respectfully submitted that the test to be applied in
determining whether to prohibit the Special Inquiry Officer or
any other person directly or indirectly connected with the
Department of Manpower and Immigration from conducting
the inquiry, is whether there exists "the probability or reasoned
suspicion of biased appraisal and judgment, unintended though
it may be".
It is respectfully submitted that a reasoned suspicion of
biased appraisal exists as a result of Mr. B. Erb's categorical
pronouncements in the press as to the Department's position in
the Appellant's case.
and, by Part IV of his memorandum, seeks the
following relief:
The decision of the Honourable Mr. Justice Walsh be
quashed and a Writ of Prohibition be issued prohibiting Mr. L.
Stuart, a Special Inquiry Officer, and any other Immigration
Officer of the Department of Manpower and Immigration, or
any 'other person directly or indirectly connected with the
Department of Manpower and Immigration from hearing this
matter.
Section 25 of the Immigration Act provides
that, subject to a limitation that has no apparent
application here, "the Director shall, upon receiv
ing a written report under section 18 and where he
considers that an inquiry is warranted, cause an
inquiry to be held concerning the person respecting
whom the report was made". Section 27(1)
requires the Special Inquiry Officer, at the conclu
sion of the hearing of an inquiry, to render his
decision as soon as possible. Section 27(2) pro
vides, inter alia, that, where the Special Inquiry
Officer decides that a person who is in Canada is
not proved to be a person described in section
18(1), he shall let such person remain in Canada,
and section 27(3) provides that, in the case of any
other such person, he shall make an order of
deportation against him.
Section 11(1) provides that "Immigration offi
cers in charge" are Special Inquiry Officers and
authorizes the Minister' to nominate "such other
immigration officers as he deems necessary" to act
as Special Inquiry Officers. Section 11(2) author
izes a Special Inquiry Officer, inter alia, "to
' Section 2 of the Act defines "Minister" to be the Minister
of Manpower and Immigration.
inquire into and determine whether any person
shall be allowed ... to remain in Canada or shall
be deported".
Section 10(1) reads as follows:
10. (1) The following persons are immigration officers for
the purposes of this Act:
(a) persons appointed as immigration officers in the manner
authorized by law;
(b) where no immigration officer is available for duty at a
port of entry, the chief customs officer at that port or any
subordinate customs officer designated by him; and
(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.
For present purposes, it may be assumed that the
immigration officers from whom a Special Inquiry
Officer may be named, for the inquiry concerning
the appellant, must be
(a) persons appointed as immigration officers in
the manner authorized by law, which is to say
persons appointed as such under the Public Ser
vice Employment Act, R.S.C. 1970, c. P-32, or
(b) persons or classes of persons recognized by
the Minister as immigration officers in circum
stances where he "deems it necessary for the
proper carrying out" of the Immigration Act.
The appellant does not put his case upon any
proof or suggestion of actual "bias" on the part of
Mr. Stuart, the Special Inquiry Officer in ques
tion. His case, as I understand it is that, not only
Mr. Stuart, but every other officer of the Depart
ment of Manpower and Immigration has become
disqualified to conduct the inquiry concerning him
because they have become subject to "the proba
bility or reasoned suspicion of biased appraisal and
judgment" by reason of the alleged statements of
Mr. Erb, who like themselves is an officer subject
to the direction and control of the Deputy
Minister.
The learned Trial Judge expressed his dissent
from any view that because of Mr. Erb's unfortu
nate expression of opinion "Mr. Stuart and any
other special inquiry officer or other person direct
ly or indirectly connected with the Department ...
would be so prejudiced and affected that he could
not conduct a fair and impartial inquiry in accord
ance 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". He concluded, therefore, that there was
not "a reasonable apprehension of bias". I agree
with his dissent but I do not share his view that his
conclusion flows therefrom. I reach his conclusion
that the application should have been dismissed
but for somewhat different reasons.
In the first place it should be borne in mind that
the Department is under the direction of the
Minister. 2 It follows, therefore, that an inquiry
must be conducted by a member of the Depart
ment that is subject to the direction and control of
the Minister (section 10(1)(a)) or by a person
specially chosen (recognized) by the Minister for
the purpose (section 10(1)(c)). Assuming, there
fore, that the principle of "probability or reasoned
suspicion of biased ... judgment" is applicable to
Special Inquiry Officers conducting inquiries
under the Immigration Act (a question concerning
which I express no opinion), as it seems to me, the
link whereby Mr. Erb's alleged expression of views
might be attributed by the public to an officer of
the- Department would equally link those views to
any other person chosen by the Minister to con
duct the inquiry concerning the appellant.' The
result is that, if that principle is applicable as an
absolute rule of law and if the appellant's conten
tion on the facts is accepted, there is no person
having statutory authority to conduct the inquiry
who would not be subject to such disqualification
from conducting the inquiry concerning the appel
lant; and the express requirements of the law for
an inquiry would be frustrated in so far as the
appellant is concerned.
2 See section 2 of the Department of Manpower and Immi
gration Act, R.S.C. 1970, c. M-1, which reads:
2. (1) There shall be a department of the Government of
Canada called the Department of Manpower and Immigra
tion over which the Minister of Manpower and Immigration
appointed by commission under the Great Seal shall preside.
(2) The Minister holds office during pleasure and has the
management and direction of the Department of Manpower
and Immigration.
3 Even if the suggested nomination of a judge would soften
the impact of the statement on the public mind, a proposition
As I understand the law concerning judicial
bias, however, even where actual bias in the sense
of a monetary interest in the subject of the litiga
tion is involved, if all eligible adjudicating officers
are subject to the same potential disqualification,
the law must be carried out notwithstanding that
potential disqualification. See The Judges v.
Attorney-General for Saskatchewan'', where the
question involved was one affecting the liability of
Saskatchewan judges to pay income tax and
where, at page 465, Sir Sidney Rowlatt, delivering
the judgment of the Privy Council, said:
The reference in question placed the Court in an embarrass
ing position, all its members being from the nature of the case
personally interested in the point in controversy. They took the
view (quite rightly in their Lordships' opinion) that they were
bound to act ex necessitate.
If this is the rule to be applied where actual bias is
involved, as it seems to me, it must also be the rule
where there is no actual case of bias but only a
"probability" or reasonable suspicion arising from
the impact of unfortunate statements on the public
mind. I, therefore, formed the view, that, even
assuming all the other factors in favour of the
appellant, because it is necessary to carry out the
legal requirements of the statute, a Special Inquiry
that, in my view, is rapidly being weakened by use of judges in
non-judicial controversial matters, I should have thought that a
judge would be unable to accept such a departmental task both
as a matter of principle and by virtue of section 37(1) of the
Judges Act, R.S.C. 1970, c. J-1, which reads:
37. (1) No judge shall act as commissioner, arbitrator,
adjudicator, referee, conciliator or mediator on any commis
sion or on any inquiry or other proceeding unless
(a) in the case of any matter within the legislative author
ity of Parliament, the judge is by an Act of the Parliament
of Canada expressly authorized so to act or he is thereunto
appointed or so authorized by the Governor in Council; or
(b) in the case of any matter within the legislative author
ity of the legislature of a province, the judge is by an Act
of the legislature of the province expressly authorized so to
act or he is thereunto appointed or so authorized by the
lieutenant governor in council of the province.
I should add that, while I have reservations as to the applica
tion to Special Inquiry Officers of the full ambit of the concept
concerning bias as it has been developed in relation to the
judiciary, I have no doubt that a deportation order would be a
nullity if made by a Special Inquiry Officer actuated in whole
or in part by improper motivations.
4 (1937) 53 T.L.R. 464.
Officer is not disqualified from acting by reason
only of the circumstances established in this case.
For the above reasons, I was of opinion that the
appeal should be dismissed with costs.
Having said that, I should add, to avoid any
misunderstanding, that, in my view, on the
assumption that the principle of "probability" or
"reasonable suspicion" of bias that is applicable to
the judiciary and certain quasi-judicial tribunals is
applicable to the administrative officers who are,
as Special Inquiry Officers, required to perform
certain tasks under the Immigration Act in accord
ance with certain quasi-judicial procedures, a
matter that in my view is open to debate, I am
satisfied that it would not come into play on what
has been established here.
As I understand this rather imprecise doctrine,
what is contemplated is not what would be regard
ed as a probability or a reasonable suspicion by a
person who is completely ignorant of the particular
decision-making process involved. The fact that
people coming from a country where the judiciary
are servants of the executive would regard it as
probable, or be suspicious, that a judge would, in
litigation between the Government and a third
party, be biased in favour of the Government that
appoints or promotes them or, in fact, plays an
important part in determining their remuneration,
is irrelevant. The doctrine would only come into
play where the facts are such as to create such idea
of probability or reasonable suspicion in the minds
of persons who understand the principle of in
dependence from the executive upon which our
judicial system is based. So, as it seems to me,
assuming that the doctrine applies to Special
Inquiry Officers, it would not come into play
where the facts are such as not to create a proba
bility or suspicion if it were not for the fact that
the investigative officers of the Immigration
Branch and the Special Inquiry Officers who have
the function of determining the facts for the pur
pose of making deportation orders are by law
under the general direction of the same Minister.
To any person who does understand that apparent
ly anomalous state of affairs, the situation, and the
only situation, that has been established in this
case, as I understand it, is that the Department, on
its investigative side, has taken a position or view,
that has resulted in the appellant's case being
made the subject of an inquiry by a hearing officer
who has a legal duty to decide for himself on the
evidence that comes out before him whether the
appellant is, under the statute, subject to deporta
tion. In my view, no person having any general
knowledge of this particular decision-making pro
cess and how it works would think that it was
probable, or be reasonably suspicious, that a Spe
cial Inquiry Officer would be deflected from his
statutory duty by such a background to his
inquiry.
In any event, that is the situation in every case
where an immigration officer makes a report
under section 18 and the Director directs an inqui
ry under section 25 of the Immigration Act. It is a
position for which Parliament has expressly pro
vided and cannot be regarded as creating a proba
bility or reasonable suspicion of bias that disquali
fies the hearing officer designated by Parliament
from acting.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the doctrine of necessi
ty is a sufficient ground for the dismissal of the
appeal in this case. However reluctant one should
be to dispose of a case of alleged bias on this
grounds the present case appears to be clearly one
in which the application of the doctrine is unavoid
able if a reasonable apprehension of bias exists.
There is a statutory duty to proceed with an
inquiry once the Director has ordered one to be
held; it is also an obvious matter of public policy to
proceed with an inquiry based on section 18(1)(a)
of the Immigration Act; and, as the Chief Justice
has demonstrated, there could be no conceivable
Special Inquiry Officer to whom the alleged
reasonable apprehension of bias would not apply.
S Cf. de Smith, Judicial Review of Administrative Action,
3rd ed., p. 244; Halsbury's Laws of England, 4th ed., Vol. 1,
para. 73.
I ann of the view, however, that the circum
stances of this case do not give rise to a reasonable
apprehension of bias. Before stating my reasons
for this conclusion I should observe that I am
satisfied that the rule against reasonable apprehen
sion of bias must apply to a Special Inquiry Offi
cer conducting an inquiry under the Immigration
Act. However the decision to admit or allow a
person to remain in Canada, as well as the related
order of deportation, might be characterized at
common law, having regard to their effect and the
criteria for decision, they are clearly, by virtue of
the provision for hearing and representation in the
Act and the Immigration Inquiries Regulations,
decisions that are required by law to be made on a
judicial or quasi-judicial basis within the meaning
of section 28 of the Federal Court Act. This duty
to act judicially or fairly in a procedural sense
carries with it the duty to approach the issues to be
determined with a fair and open mind. No doubt
the application of the rule against reasonable
apprehension of bias to a Special Inquiry Officer
involves acceptance of the fact that he is an officer
in the Department that also investigates the case
and initiates the inquiry, and that the inquiry itself
is an inquisitorial as well as an adjudicative pro
cess in which the Special Inquiry Officer plays an
active role in eliciting the evidentiary basis of his
decision. But in spite of these particular character
istics of his function, expressly provided for by the
legislation, the persons to be affected by his deci
sion are entitled to the confidence, based upon
reasonable grounds, that he will approach the
inquiry with a mind free from prejudgment.
The issue in this case is whether the statement
attributed by the newspaper article to Mr. B. M.
Erb, Director of Information for the Department
of Manpower and Immigration, gives rise to a
reasonable apprehension of bias in the Special
Inquiry Officer who has been directed to conduct
the inquiry or in any other Special Inquiry Officer
to whom the inquiry might be assigned. The test,
as the Supreme Court of Canada has indicated, is
whether the reasonable apprehension is one that
reasonably well-informed persons could properly
have of biased appraisal and judgment of the
issues to be determined. See Committee for Jus
tice and Liberty v. National Energy Board (1976)
68 D.L.R. (3d) 716 per Laskin C.J.C. at p. 733.
The particular statement attributed to Mr. Erb
on which the case for reasonable apprehension of
bias is based is reported in the article as follows:
He said the Supreme Court of Canada ruled last year that
Caccamo is a member of the Mafia and the Immigration
Department must take the view that the Mafia is a subversive
organization.
This statement of Mr. Erb, however ill-advised
it might have been, must be read in its context—
both that provided by the article in which it
appears and that provided by the legislative
scheme to which the article refers—if we are to
judge what a reasonable and reasonably well-
informed mind would conclude from it. As such, it
is in my opinion no more than a statement of why
the Department has instituted deportation pro
ceedings, or in other words, why an immigration
officer has made a report pursuant to section 18
and why the Director has ordered that an inquiry
be held. It is this initiative on the part of the
Department to which the statement is directed, and
not the result that may be anticipated from the
inquiry. It seems to me that the following two
paragraphs, appearing before the statement about
which complaint is made, place the statement in its
proper perspective:
Mr. Erb said Caccamo had been ordered to appear before a
special inquiry officer tomorrow when a deportation hearing
will be held.
The Government is alleging that Caccamo is a prohibited
immigrant under Section 5(L) of the Immigration Act, because
he belongs to a subversive organization--the Mafia.
This would suggest to any reasonable and fair-
minded person that the position which the Depart
ment has adopted with respect to the nature of the
Mafia and Caccamo's relationship to it is the basis
of the Department's decision that an inquiry
should be held and is not a view that the Depart
ment is seeking to impose upon the Special Inquiry
Officer who is required to conduct the inquiry. The
judgments of the Ontario Court of Appeal and the
Supreme Court of Canada with respect to Cac-
camo are matters of public record which could be
expected to be brought to the attention of the
Special Inquiry Officer in any event. Mr. Erb's
statement adds nothing, in effect, for purposes of
the issue in this case, to the expressions of opinion
reflected in the section 18 report and direction.
The statement in no way reflects the view of the
Special Inquiry Officer or gives reasonable
grounds for believing that he will be unable to
consider the evidence before him with impartiality.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J.: While I agree that this appeal
should be dismissed for the reasons given by the
Chief Justice, I am also of the opinion that, in the
circumstances of this case as set out in the reasons
of my brother Le Dain, it cannot be said that there
could be any reasonable apprehension of bias on
the part of the Special Inquiry Officer conducting
the hearing and on this ground also I would dis
miss the appeal.
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.