A-57 I -89
Pacific Press Limited, Neil Graham, John Tre-
thewey, Glen Bohn and CKNW Radio (Appli-
cants)
v.
Minister of Employment and Immigration; R. G.
Smith, in his capacity as Adjudicator pursuant to
the Immigration Act (Canada) and Charles Julius
McVey (Respondents)
INDEXED AS: PACIFIC PRESS LTD. V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (CA.)
Court of Appeal, Heald, Mahoney and Desjardins
JJ.A.—Vancouver, January 11; Ottawa, January
26, 1990.
Immigration — Practice — S. 28 application to set aside
Adjudicator's decision, under Immigration Act, s. 29(3), to
hold inquiry in camera — S. 29(3) giving member of public
opportunity to request permission to attend inquiry if estab
lishes inquiry would not be impeded and no adverse effect for
person investigated or family — Latter limitation odd as other
persons could be prejudiced — Not appropriate, on present
record, to make general declaration as to validity of s. 29(3) —
Assertion of right to judicial or quasi-judicial proceeding
founded on Charter, s. 2(b) must, of itself inferentially satisfy
slight burden imposed on "member of public" in s. 29(3) and
shift onus onto person seeking to exclude press — Adjudicator
erred in law in making order without evidence in support —
Person seeking to exclude press ought to be afforded opportu
nity to present necessary supporting evidence under condition
preventing its disclosure and publication — Application
allowed.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of press — Immigration inquiry —
S. 28 application to set aside Adjudicator's decision ordering
in camera inquiry under Immigration Act, s. 29(3) — Not
appropriate to make general declaration as to whether s. 29(3)
invalid as inconsistent with Charter s. 2(b) — Matter not
necessarily dealt with by Adjudicator and evidence could be
adduced to support Charter s. I justification of in camera
inquiries — Assertion of right to access to judicial or quasi-
judicial proceeding founded on Charter s. 2(b) must, of itself
inferentially satisfy slight s. 29(3) burden imposed on member
of public seeking access and shift onus onto person seeking to
exclude press — Adjudicator erred in law in making order
without supporting evidence — Application allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSI DERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix 11,
No. 44], ss. I, 2(b).
Constitution Act, /982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. 1-2, s. 29(3) (as am. by
R.S.C., 1985, (1st Supp.), c. 31, s. 99).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Cameron, [1966] 58 D.L.R. (2d) 486; (1966), 4
C.C.C. 273; 49 C.R. 49 (Ont. C.A.).
REFERRED TO:
Edmonton Journal v. Alberta (Attorney General), [I989]
2 S.C.R. 1326.
COUNSEL:
Roger D. McConchie and Patrick G. Foy for
applicants Pacific Press Limited, Neil
Graham, John Trethewey and Glen Bohn.
Daniel W. Burnett and Christopher P. Weafer
for applicant CKNW Radio.
Mary A. Humphries for respondent Minister
of Employment and Immigration.
Robert S. Anderson for respondent Charles
Julius McVey.
SOLICITORS:
Ladner Downs, Vancouver, for applicants
Pacific Press Limited, Neil Graham, John
Trethewey and Glen Bohn.
Owen, Bird, Vancouver, for applicant CKNW
Radio.
Deputy Attorney General of Canada for
respondent Minister of Employment and
Immigration.
Farris, Vaughan, Wills & Murphy, Vancou-
ver, for respondent Charles Julius McVey.
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application seeks to set
aside the decision of the respondent Adjudicator to
conduct an inquiry under the Immigration Act,
R.S.C., 1985, c. I-2, with respect to the respondent
McVey in camera. The Adjudicator found his
authority in subsection 29(3) [as am. by R.S.C.,
1985, (1st Supp.), c. 31, s. 99] of the Act.
29. (1) As inquiry by an adjudicator shall be held in the
presence of the person with respect to whom the inquiry is to be
held wherever practicable.
(2) At the request or with the permission of the person with
respect to whom an inquiry is to be held, an adjudicator shall
allow any person to attend an inquiry if such attendance is not
likely to impede the inquiry.
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera unless it is established to
the satisfaction of the adjudicator, on application by a member
of the public, that the conduct of the inquiry in public would
not impede the inquiry and that the person with respect to
whom the inquiry is to be held or any member of that person's
family would not be adversely affected if the inquiry were to be
conducted in public.
The applicants seek a declaration, pursuant to
subsection 52(1) of the Constitution Act, 1982,
[Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44] that subsec
tion 29(3) is of no force and effect by reason of its
inconsistency with their freedom under paragraph
2(b) of the Canadian Charter of Rights and Free
doms [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]].
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
They also argue that the decision was not support
ed by the evidence. The Minister appeared only to
support the validity of the legislation. The
Adjudicator, entirely properly, did not appear.
McVey supports both the validity of the legislation
and the order and asks, further, that if the matter
is referred back to the Adjudicator he be given the
direction that, if requested by McVey, evidence
and argument opposing the opening of the inquiry
to the public be received in camera.
I do not consider it appropriate, on the present
record, to make a general declaration as to the
validity or otherwise of subsection 29(3) even
though the Adjudicator did make such a finding.
In the first place, having perused the transcript
with care, I find no request to the Adjudicator to
make the declaration he did. The inclusion of a
request for such a declaration in the notice of
motion initiating this section 28 application is not,
in my opinion, a basis for us doing so when the
question was not necessarily dealt with by the
Adjudicator. In the second place, and notwith
standing the preeminence argued to have been
accorded paragraph 2(b) by the Supreme Court of
Canada in Edmonton Journal v. Alberta (Attorney
General), [1989] 2 S.C.R. 1326, this Court ought
not ignore its own experience in dealing with
immigration matters. It is apparent to us that
evidence could be made available in support of a
section 1 justification of provision for in camera
inquiries. We have been advised that judgment has
been reserved by the Trial Division in an action for
a declaration dealing with this issue in the case of
a refugee claimant. Obviously, the less said by this
Court at the moment, the better. It has been
suggested that if we fail to deal with it and the
matter is returned to the Adjudicator it may only
be a matter of time until the issue is unavoidably
before us again. That may be but, if it is, it may be
back with a body of section 1 evidence.
Subsection 29(3) does give the Adjudicator a
discretion. It places on a member of the public,
interested in doing so, the onus of establishing two
negatives: that the conduct of the inquiry in public
would not impede it and that neither the person
concerned nor any member of that person's family
would be thereby adversely affected. The latter
limitation is odd. What, for example of the prison
guard, policeman or soldier who, through friend
ship, bribery or sympathy, has facilitated a refugee
claimant's escape and what of resident foreigners,
perhaps missionaries or business people, willing to
testify only if their opportunity to return is not
prejudiced?
It may be arguable that the onus is misplaced.
Again, I think it best, in the circumstances, not to
express a concluded opinion on that aspect of the
provision. The practical consequence seems not, in
my view of the question, to be particularly signifi
cant since the standard properly to have been
applied by the Adjudicator was as stated by Ayles-
worth, J.A., in R. v. Cameron, [1966] 58 D.L.R.
(2d) 486; (1966), 4 C.C.C. 273; 49 C.R. 49 (Ont.
C.A.), at page 498 D.L.R.:
Where, however, the onus lies upon the Crown to prove a
negative as an element of the charge, little proof will often
suffice. Such proof often must be drawn by inference from
other proven facts.
It seems to me that the assertion of a right to
access to a judicial or quasi-judicial proceeding
founded on paragraph 2(b) of the Charter must, of
itself, inferentially satisfy that slight burden and
shift the onus to the person seeking to exclude the
press.
The Adjudicator did not take that approach.
Rather he held:
I am satisfied therefore that the onus of satisfying the adjudica
tor under subsection 29(3) of the Immigration Act lies with the
applicant and, further, that it is not incumbent upon the person
concerned's counsel to submit evidence per se but that any
submissions may still be considered.
His reason for holding the inquiry in camera was
based solely on undisputed submissions, not evi
dence, to the effect that McVey's wife, resident
somewhere in the United States, "is suffering from
terminal cancer and that the publicity issuing from
an inquiry may have a severe adverse affect on
her". Nothing was said of other measures that
might reasonably be taken to deny her access to
the publicity. In my opinion, that provided no
proper basis for an exercise of discretion to close
the inquiry. Whatever freedom of the press entails,
there must surely be an evidentiary basis to sup
port its lawful impairment in a judicial or quasi-
judicial proceeding. The Adjudicator erred in law
in making the order he did without evidence to
support it.
The problem faced by the Adjudicator arose
directly out of his refusal to conduct in camera the
proceedings on the applicants' request that the
inquiry be open. As a result of that, McVey
refused to lead evidence. On the assumption that
in camera proceedings in an inquiry under the
Immigration Act may be justified notwithstanding
paragraph 2(b) of the Charter, it seems obvious
that the person seeking to exclude the press ought
to be afforded the opportunity to present the
necessary supporting evidence under conditions
that will prevent its disclosure and publication.
Experienced counsel will be able to suggest a
variety of acceptable measures to maintain confi
dentiality while allowing the evidence to be tested
by adverse interests.
I would allow this section 28 application, set
aside the decision of the Adjudicator to hold the
inquiry in camera and remit the matter to him for
reconsideration on a basis not inconsistent with
these reasons.
HEALD J.A.: I agree.
DESJARDINS J.A.: 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.