A-985-84
Ajit Kaur Brar (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Winnipeg, May 28; Ottawa, June 25, 1985.
Constitutional law — Charter of Rights — Equality rights
— Application to set aside Immigration Appeal Board's dis
missal of appeal from refusal of application for landing of
family members, for lack of jurisdiction — S. 79(2) of Immi
gration Act, 1976 giving right of appeal to Canadian citizens
only — Applicant landed immigrant — Application dismissed
— S. 15 of Charter, guaranteeing equality before law, not
applicable to matter arising before coming into force —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act /982, 1982, c.
11 (U.K.), s. 15 — Immigration Act, 1976, S.C. 1976-77, c. 52,
s. 79(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28 — Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 32(2).
Bill of Rights — S. 2(e) declaring right of person not to be
deprived of fair hearing — Application for landing refused as
members of family class not meeting requirements of Act or
regulations pursuant to s. 79(1)(b) of Immigration Act, 1976
— Refusal not involving applicant's rights — No "determina-
tion of (her) rights" within s. 2(e) so as to entitle her to fair
hearing by way of appeal — Canadian Bill of Rights, R.S.C.
1970, Appendix III, s. 2(e) — Immigration Act, 1976, S.C.
1976-77, c. 52, s. 79(1)(a),(b) — Immigration Regulations,
1978, SOR/78-/72, s. 41(1)(a) — Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 26.
Bill of Rights — S. 1(b) declaring right of individual to
equality before law and protection of law — S. 79(2) of
Immigration Act, /976 giving right of appeal to Canadian
citizens only — S. 79(2) passing valid federal objective test —
S. 79(2) applying equally to all non-citizens — Canadian Bill
of Rights, R.S.C. 1970, Appendix III, s. 1(b) — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. I l
(U.K.), s. 26.
Immigration — Practice — Immigration Appeal Board
dismissing appeal from refusal of application for landing of
family members, as applicant not Canadian citizen as required
by s. 79(2) of Immigration Act — Letter from Registrar of
Canadian Citizenship stating applicant not citizen, unsupport
ed by sworn statement, only evidence before Board — Rules
requiring evidence on motion be by affidavit or statutory
declaration unless in opinion of Board, circumstances exist to
allow introduction of evidence in other manner — Board
forming required opinion, although not disclosed on record —
Better practice to base decision upon sworn evidence — Immi
gration Appeal Board Rules (Appellate) 1981, SOR/81-419,
R. 20 — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 26(2)
— Immigration Act, 1976, S.C. 1976-77, c. 52, s. 79(2).
The applicant sponsored the application for landing of her
family, which was refused. The applicant appealed to the
Immigration Appeal Board. The respondent applied for an
order that the Board did not have jurisdiction on the ground
that by subsection 79(2) of the Immigration Act, 1976 only a
Canadian citizen may appeal to the Board. The application was
supported by a letter from the Registrar of Canadian Citizen
ship stating that the applicant was not a Canadian citizen. The
Board allowed the application and dismissed the appeal after a
hearing at which there were no witnesses, and no material
before the Board, other than the letter of the Registrar. The
applicant seeks to set aside the Board's decisions. She argues
that on the basis of subsection 15(1) of the Charter or para
graph 1(b) or 2(e) of the Canadian Bill of Rights, subsection
79(2) should be declared invalid as it denies her, a landed
immigrant, a right of appeal.
Held, the application should be dismissed.
Rule 20 of the Immigration Appeal Board Rules (Appel-
late), 1981 requires that unless "in the opinion of the Board,
circumstances exist to allow evidence to be introduced in some
other manner", evidence received by the Board on a motion be
by way of "affidavit or statutory declaration". There is no
indication that the Board was of opinion that circumstances
existed which would lead it to allow introduction of the letter.
Although the better practice would require that the central fact
upon which the Board decided that it lacked jurisdiction be
established upon sworn evidence, the Board evidently did form
the required opinion. The applicant was in fact only a landed
immigrant.
Subsection 15(1) of the Charter, guaranteeing equality
before and under the law and equal protection or benefit of the
law, does not apply because this matter arose before April 17,
1985, when section 15 came into force.
Paragraph 1(b) of the Canadian Bill of Rights recognizes
"the right of the individual to equality before the law and the
protection of the law". Paragraph 2(e) provides that "no law of
Canada shall be construed ... so as to ... deprive a person of
the right to a fair hearing in accordance with the principles of
fundamental justice..." The applicant argues that the words
"the right of the individual" and the right of "a person" apply
to her even though she is not a Canadian citizen.
Approval of the application for landing was refused on the
ground that the members of the family class did not meet the
requirements of the Act or Regulations, as provided in para
graph 79(1)(b) of the Immigration Act, 1976. The refusal did
not involve the applicant's rights. Therefore there was not a
"determination of (her) rights" within the meaning of para
graph 2(e), so as to entitle her to a fair hearing by way of
appeal.
Paragraph 1(b) of the Canadian Bill of Rights cannot be
used to strike down federal legislation made to attain a valid
federal objective: R. v. Burnshine, [1975] 1 S.C.R. 693; Prata
v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376.
The "valid federal objective test" is met in this case. The
applicant held only landed immigrant status, which does not
carry with it the full rights and protections accorded a citizen.
Despite the apparent disadvantage to the applicant under the
statute as compared with a sponsor who happens to be a
Canadian citizen, subsection 79(2) is not invalid as it seeks to
achieve a valid federal objective and applies equally to all
persons who are not Canadian citizens.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Burnshine, [1975] I S.C.R. 693; Prata v. Minister
of Manpower & Immigration, [1976] 1 S.C.R. 376.
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177; (1985), 58 N.R. I.
REFERRED TO:
Bliss v. Attorney General (Can.), [1979] 1 S.C.R. 183;
MacKay v. The Queen, [1980] 2 S.C.R. 370; The Queen
v. Drybones, [1970] S.C.R. 282; Attorney General of
Canada v. Lavell; Isaac v. Bédard, [1974] S.C.R. 1349.
COUNSEL:
Wasyl Troszko for applicant.
Barbara Shields for respondent.
SOLICITORS:
Jerrold L. Gunn & Associates, Winnipeg, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
STONE J.: Some time prior to August 10, 1983
the applicant, a resident of Winnipeg, sponsored
the application for landing in Canada of her
father, mother and two sisters all being citizens of
India. The application was refused by an immigra
tion officer on that date.
Soon afterward, the applicant filed a "Notice of
Appeal" against the refusal to the Immigration
Appeal Board. In November of that year the
respondent brought an application before the
Board "for an Order that the Board does not have
jurisdiction" in the matter on the ground that by
section 79 of the Immigration Act, 1976 [S.C.
1976-77, c. 52] only a "Canadian citizen may
appeal to the Immigration Appeal Board". The
application was supported by a letter of October
17, 1983 addressed to the Canada Immigration
Centre in Winnipeg by the Registrar of Canadian
Citizenship. The letter reads:
The records of Citizenship Registration, Department of the
Secretary of State, have been searched and with the informa
tion provided no record can be located of Brar, Ajit Kaur born
05-10-59 having a pending application for or been granted or
issued a Certificate of Naturalization or Canadian citizenship.
The application was dealt with by the Board
after a hearing held on July 30, 1984 and was
allowed. No witnesses were called and apart from
the record in the "appeal" file, there is nothing to
indicate that the Board had before it any material
other than the letter of the Registrar of Canadian
Citizenship. That letter was not incorporated in or
attached to an affidavit or other sworn statement.
Having allowed the application the Board proceed
ed on the same day to dismiss the appeal "for lack
of jurisdiction".
The applicant brings two applications before us
pursuant to section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10]. In Court File
No. A-984-84 she asks that we review and set
aside the Board's order dismissing her appeal. In
the present application she asks that we review and
set aside the Board's order allowing the respond
ent's application. For the sake of convenience these
reasons for judgment will apply equally to Court
File No. A-984-84 and a copy of them will be filed
and will constitute my reasons for judgment there
in as well as in the present matter.
No objection was taken by the applicant to the
sufficiency of the proof represented by the letter of
October 17, 1983. But, in the course of the hear
ing, the Court itself raised a question whether the
Board had acted properly in receiving that letter
having regard to the provisions of Rule 20 of the
Immigration Appeal Board Rules (Appellate),
1981 [SOR/81-419] which requires that unless "in
the opinion of the Board, circumstances exist to
allow evidence to be introduced in some other
manner", evidence received by the Board on a
motion be by way of "affidavit or statutory decla
ration". There is no clear indication in the record
before us that the Board was of opinion that the
necessary circumstances existed leading it to allow
introduction of the letter on that basis. Although,
in my view, the better practice would require that
the central fact upon which the Board decided that
it lacked jurisdiction be established upon sworn
evidence,' it seems evident that it did form the
required opinion and thus allowed the letter to be
introduced even though that opinion is not dis
closed on the face of the record. Additionally, it is
apparent from other arguments made before us
that the applicant was, in point of fact, only a
landed immigrant and not a Canadian citizen.
The applicant mounted three attacks on the
Board's order based upon the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)] and the Canadian Bill of
Rights [ R.S.C. 1970, Appendix III]. She argues
that on the basis of subsection 15(1) of the Chart
er or of paragraph 1(b) or paragraph 2(e) of the
' See also subsection 26(2) of the Canada Evidence Act,
R.S.C. 1970, c. E-10.
Canadian Bill of Rights we should declare subsec
tion 79(2) of the Immigration Act, 1976 invalid in
that it denies her, as a landed immigrant, a right
of appeal from the decision of the immigration
officer refusing the application of members of her
family for landing in Canada. Subsection 79(2) of
the Act reads:
79....
(2) A Canadian citizen, who has sponsored an application for
landing that is refused pursuant to subsection (1) may appeal
to the Board on either or both of the following grounds,
namely,
(a) on any ground of appeal that involves a question of law or
fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
By subsection (3) of the same section the Board
had power to allow or to dismiss the appeal and
where the Minister has been notified that an
appeal has been allowed subsection (4) required
him to cause the review of the application to be
resumed by an immigration officer or visa officer,
as the case may be, "and the application shall be
approved where it is determined that the person
who sponsored the application and the member of
the family class meet the requirements of this Act
and the regulations, other than those requirements
upon which the decision of the Board has been
given".
There is no need to say more about the Charter
argument other than that subsection 15(1) con
cerning equality before and under the law and
equal protection or benefit of the law is inappli
cable because the matter here arose well before
April 17, 1985 when that section of the Charter
came into force. Until that date, according to
subsection 32(2) of the Constitution Act, 1982
[Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], "section 15 shall not have effect...."
The arguments based upon the provisions of the
Canadian Bill of Rights 2 require more detailed
treatment. Paragraph 1(b) and paragraph 2(e) of
the Canadian Bill of Rights read:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(b) the right of the individual to equality before the law and
the protection of the law;
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgement or infringement of any
of the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
The applicant stresses the words "the right of the
individual" appearing in paragraph 1(b), and the
right of "a person" under paragraph 2(e) not to be
deprived of a fair hearing, which she interprets as
applying to her even though she be not a Canadian
citizen.
Paragraph 2(e) of the Canadian Bill of Rights
was the subject of comment by Beetz J. speaking
for three of the six judges who decided Singh et al.
v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; (1985), 58 N.R. 1, a recent
decision of the Supreme Court of Canada. The
learned Judge expressed a willingness in that case
(at page 224 S.C.R.; at page 7 N.R.) to accord the
Canadian Bill of Rights and various provincial
charters of rights the status of "constitutional or
quasi-constitutional instruments ... susceptible of
producing cumulative effects for the better protec
tion of rights and freedoms". As for the ambit of
paragraph 2(e) in particular, Beetz J. observed (at
page 228 S.C.R.; at pages 12-13 N.R.):
2 I is to be read in the light of section 26 of the Charter
which requires that the guarantee of certain rights and free
doms in the Charter "shall not be construed as denying the
existence of any other rights or freedoms that exist in Canada".
Be that as it may, it seems clear to me that the ambit of
s. 2(e) is broader than the list of rights enumerated in s. 1
which are designated as "human rights and fundamental free
doms" whereas in s. 2(e), what is protected by the right to a
fair hearing is the determination of one's "rights and obliga
tions", whatever they are and whenever the determination
process is one which comes under the legislative authority of
the Parliament of Canada. It is true that the first part of s. 2
refers to "the rights or freedoms herein recognized and
declared", but s. 2(e) does protect a right which is fundamen
tal, namely "the right to a fair hearing in accordance with the
principles of fundamental justice" for the determination of
one's rights and obligations, fundamental or not. It is my view
that, as was submitted by Mr. Coveney, it is possible to apply s.
2(e) without making reference to s. 1 and that the right
guaranteed by s. 2(e) is in no way qualified by the "due
process" concept mentioned in s. 1(a).
Accordingly, the process of determining and redetermining
appellants' refugee claims involves the determination of rights
and obligations for which the appellants have, under s. 2(e) of
the Canadian Bill of Rights, the right to a fair hearing in
accordance with the principles of fundamental justice. It fol
lows also that this case is distinguishable from cases where a
mere privilege was refused or revoked, such as Prata v. Minis
ter of Manpower and Immigration, [1976] 1 S.C.R. 376, and
Mitchell v. The Queen, [1976] 2 S.C.R. 570.
I do not find in the record of the case before us
anything to suggest that approval of the applica
tion for landing was refused on the ground "that
the person who sponsored the application does not
meet the requirements of the regulations" as pro
vided in paragraph 79(1)(a) of the Act. Had that
been the case the immigration officer who dealt
with the application would have been required
under paragraph 41(1)(a) of the Immigration
Regulations, 1978 [SOR/78-172] to "provide to
the sponsor ... a summary of the information on
which his reason for refusal is based". Rather, the
decision of August 10, 1983 appears to have been
made on the basis that the members of the family
class who were the subjects of the application for
landing did "not meet the requirements of this Act
or the regulations" as provided in paragraph
79(1)(b) of the Act. Accordingly, it is my view
that even though the applicant had an undeniable
personal interest in the outcome of the application
for landing, the refusal to approve that application
did not, strictly speaking, involve her rights as
sponsor. There was not, therefore, a "determina-
tion of (her) rights" within the meaning of para-
graph 2(e) of the Canadian Bill of Rights so as to
entitle her to a fair hearing by way of appeal.
The relevance of paragraph 1(b) of the Canadi-
an Bill of Rights raises a more difficult question.
Were it not for the provisions of subsection 79(2)
of the Act, the applicant could have appealed the
refusal to approve the application for landing to
the Board. She had acquired landed immigrant
status in Canada herself and by her sponsorship
sought to reunite her family here. It seems clear
that an "appeal" to the Board would, in fact, have
amounted to a full hearing and reconsideration of
the evidence that was before the immigration offi
cer in arriving at his decision of August 10, 1983.
Had she been a Canadian citizen the appeal pro
cess would have given her access to all of the
evidence thus considered, to cross-examine any
witnesses for the respondent, to put in evidence'
and to make submissions. It seems unnecessary to
underline the advantages such a process would
present for detecting error and for correcting it.
Paragraph 1(b) of the Canadian Bill of Rights
has been the subject of consideration in earlier
cases, particularly by the Supreme Court of
Canada. As a result the principle has emerged that
it cannot be used to strike down federal legislation
made to attain a valid federal objective. That, it
seems to me, is the clear holding of the majority in
R. v. Burnshine, [1975] 1 S.C.R. 693 and of a
unanimous Court in Prata v. Minister of Man
power & Immigration, [1976] 1 S.C.R. 376. In the
latter case the applicant contended that section 21
of the Immigration Act [R.S.C. 1970, c. I-2] was
contrary to paragraph 1(b) of the Canadian Bill of
Rights in that it required the Board to dismiss his
appeal for a further stay (pursuant to section 15 of
the statute) in the execution of its deportation
order after the Minister and the Solicitor General
in a certificate filed with the Board expressed the
opinion that based upon security or criminal intel
ligence reports received and considered by them
"it would be contrary to the national interest" for
the Board to grant the stay. In deciding that
3 Rule 35(2)(c) of the Immigration Appeal Board Rules
(Appellate), /981 entitles a party to an appeal to call witnesses
before the Board.
section 21 was not contrary to paragraph 1(b),
Martland J. stated (at page 382) on behalf of the
Court:
It is contended that the application of s. 21 has deprived the
appellant of the right to "equality before the law" declared by
s. 1(b) of the Canadian Bill of Rights. The effect of this
contention is that Parliament could not exclude from the
operation of s. 15 persons who the Crown considered should
not, in the national interest, be permitted to remain in Canada,
because such persons would thereby be treated differently from
those who are permitted to apply to obtain the benefits of s. 15.
The purpose of enacting s. 21 is clear and it seeks to achieve a
valid federal objective. This Court has held that s. 1(b) of the
Canadian Bill of Rights does not require that all federal
statutes must apply to all individuals in the same manner.
Legislation dealing with a particular class of people is valid if it
is enacted for the purpose of achieving a valid federal objective
(R. v. Burnshine (1974), 44 D.L.R. (3d) 584).
The Supreme Court has since reiterated this posi
tion in Bliss v. Attorney General (Can.), [ 1979] 1
S.C.R. 183 and by a majority in MacKay v. The
Queen, [1980] 2 S.C.R. 370. However, in an ear
lier decision, The Queen v. Drybones, [ 1970]
S.C.R. 282, the Supreme Court found discrimina
tion by reason of race to be offensive as denying
equality before the law or, as it was put by Ritchie
J. in the Bliss case (at page 192), "equality of
treatment in the administration and enforcement
of the law before the ordinary courts of the land".
(See also Attorney General of Canada v. Lavell;
Isaac v. Bédard, [1974] S.C.R. 1349, at page
1366).
It may appear that because the applicant as a
landed immigrant is denied by the statute a right
of appeal which for the first time included the
right to have the application for landing con
sidered on compassionate or humanitarian
grounds, she is thereby denied equal treatment in
the administration and enforcement of the law.
But in view of the Supreme Court decisions
already discussed including especially that of
Prata, it is difficult for me to see that the "valid
federal objective" test is not met in this case. The
applicant held only landed immigrant status in
Canada and that, of course, did not carry with it
the full rights and protections accorded a citizen
including that of remaining in this country as long
as citizenship exists. It seems to me, therefore, that
despite the apparent disadvantage to the applicant
under the statute as compared with a sponsor who
happens to be a Canadian citizen, the law as it has
developed to date would not appear to regard the
provisions of subsection 79(2) as invalid in view of
the fact that they seek to achieve a valid federal
objective and apply equally to all persons who are
not citizens of Canada. If that be correct, then it is
not for this Court to do other than to apply the law
as laid down. Any change would have to come
from a higher authority.
For the foregoing reasons I would dismiss this
application.
HEALD J.: I concur.
MAHONEY J.: I concur.
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.