A-834-85
Chief Robert Satiacum (Applicant)
v.
Minister of Employment and Immigration, R.
McNeil, Esq. in his capacity as a Case Presenting
Officer and Daphne Shaw Dyck, in her capacity
as a Reviewing Adjudicator (Respondents)
Court of Appeal, Heald, Hugessen and Stone
JJ.—Vancouver, December 6; Ottawa, December
19, 1985.
Judicial review — Applications to review — Immigration —
Application to set aside Adjudicator's decision ordering appli
cant's continued detention — Application dismissed — Fact
Adjudicator and case presenting officer both employees of
same department not giving rise to reasonable apprehension of
bias — Test to determine reasonable apprehension of bias in
Committee for Justice and Liberty et al. v. National Energy
Board et al., /19781 1 S.C.R. 369, applied — Informed person
viewing matter realistically and practically, and having
thought it through, not concluding more likely than not
Adjudicator, whether consciously or unconsciously, not decid
ing fairly — MacBain v. Lederman, /19851 1 F.C. 856; (1985),
62 N.R. 117 (C.A.) distinguished — Statutory scheme in
MacBain permitting Canadian Human Rights Commission to
substantiate complaint, select tribunal to hear it and prosecute
it — No evidence Adjudicator specially chosen to conduct
particular review, or chosen by person having ultimate respon
sibility for opposing release — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 2(1), 104(6),(7), 110(1),(2) — Immigration
Regulations, 1978, SOR/78-172, s. 2(1) — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, s. 2(e).
Bill of Rights — Right to fair hearing in accordance with
principles of fundamental justice — No reasonable apprehen
sion of bias in fact case presenting officer and Adjudicator
presiding over Immigration Act custody hearing employees of
same department — MacBain v. Lederman, 119851 1 F.C. 856;
(1985), 62 N.R. 117 (C.A.) distinguished — Statutory scheme
in MacBain permitting Canadian Human Rights Commission,
through employees, to act as judge and prosecutor — No
suggestion Adjudicator chosen by person having ultimate res
ponsibility for opposing release from custody, nor that special
ly chosen for particular review — Canadian Bill of Rights,
R.S.C. 1970, Appendix III, s. 2(e).
Immigration — Applicant, convicted in U.S.A., fled to
Canada to avoid punishment — Adjudicator ordering con-
tinued detention — Both case presenting officer and Adjudica
tor officers of Immigration Department — MacBain case
distinguished — Reasonable apprehension of bias not made
out — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 2(1),
104(6),(7), 110(1),(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369.
DISTINGUISHED:
MacBain v. Lederman, [1985] 1 F.C. 856; (1985), 62
N.R. 117 (C.A.).
REFERRED TO:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
COUNSEL:
Judith C. Lee for applicant.
W. B. Scarth, Q.C. for respondents.
SOLICITORS:
Evans, Goldstein & Company, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
STONE J.: This case raises a simple though
important question. It concerns liberty of the
individual. The applicant, an American citizen,
seeks to set aside a decision dated October 29,
1985 of an Adjudicator ordering his continued
detention pursuant to the Immigration Act, 1976,
S.C. 1976-77, c. 52. He had been in detention for
more than two years and is the subject of an
immigration inquiry concerning his status in
Canada. The inquiry cannot be completed until his
redetermination application for "Convention
refugee" status is disposed of by the Immigration
Appeal Board. We were told the hearing of that
application, having already occupied several days
of hearing time, is scheduled for a further two
weeks of hearing in March of next year.
The detention in issue had been reviewed on a
weekly basis and a decision made each time that it
be continued. That was the case once again on
October 29, 1985. The Adjudicator gave the fol
lowing reasons for continuing it:
Today's submissions as well as previous submissions attested to
Mr. Satiacum's good character. These arguments do not dimin
ish the fact that upon conviction in the U.S. Mr. Satiacum fled
to Canada to avoid the consequences of that conviction and
failed to abide by a $225,000. bail order. I consider his
behaviour in this regard significant in terms of whether he
would report for the continuation of his Immigration inquiry.
Everything Mr. Satiacum has done to date demonstrates he is
avoiding returning to the U.S. Should the refugee determina
tion be unsuccessful, it is reasonable to form the opinion that he
would continue to try to avoid returning to the U.S. The
refugee redetermination will not result in deportation from
Canada. The resumption of the inquiry necessarily will because
of the Adjudicator's findings with respect to the allegation. The
conclusion of his inquiry could well lead to removal to the U.S.
where he faces the possibility of a lengthy prison sentence.
Consequently, there is little incentive for him to report for his
inquiry and that is what I must consider, not whether he would
report for the resumption of his Immigration Appeal Board
hearings. The fact that he has made no attempt to escape while
at the hospital or at I.A.B. chambers is not persuasive, in light
of his flight to Canada, that he would appear, if actually
released, for the resumption of his inquiry.
As Mr. Goldstein pointed out, it may be some time before the
inquiry is reconvened. Mr. Satiacum, if released, would have
ample opportunity to once again take flight or disappear should
his inquiry be scheduled to resume. Further, Mr. Satiacum's
current medical problems do not make it either likely or
unlikely that he would appear for the resumption of his inquiry.
It has not been shown that he is so ill that it would be
impossible for him to disappear in the event his inquiry is
scheduled for resumption.
Finally, I did not find that there were any specific or convincing
arguments made to show that Mr. Satiacum's detention is
contrary to the Charter of Rights and Freedoms. I would note,
as well, that this particular issue was argued before the Trial
Division of the Federal Court and was dismissed.
Being of the opinion that it was unlikely that Mr. Satiacum
would report for the resumption of his inquiry if released and
agreeing with previous decisions rendered in this regard, I
ordered Mr. Satiacum's continued detention.
In point of fact, the bond in question, dated April
28, 1982, is in the amount of $250,000. It was
given by the applicant to gain his release from
custody in advance of his trial in a criminal pro-
ceeding then pending in the United States District
Court for the Western District of Washington at
Seattle.
While a number of attacks are made upon the
Adjudicator's decision, at the hearing before us the
respondent was called upon to address only one of
them. It is set out in paragraph 1(iii) of the
applicant's memorandum of points of argument:
The record shows that the evidence regarding the Bail Bond
could only have been received through private interviews with
the Case Presenting Officer or by having referred to the file of
the Immigration authorities, which file was available to the
Case Presenting Officer and was not available to Counsel for
the Applicant; and as such the Adjudicator was not acting in an
independent and impartial capacity in making a quasi-judicial
or judicial decision with regard to due process of the law so that
there was a danger that the Adjudicator was biased and it was
reasonable for the Applicant to feel a reasonable apprehension
of bias by the Adjudicator.
At the hearing the Court indicated that evidence
of the existence of the bond and of the default
made thereunder, being clear on the record which
had accumulated on earlier review hearings, was
properly before the Adjudicator and that she had
acted properly in taking account of it in arriving at
her decision. The suggestion that she may have
gained such information through private inter
views with the case presenting officer is simply not
borne out by the record and must be rejected.
The point of objection in the written submission
was further refined in argument before us. In
essence, it amounts to this: that there existed a
reasonable apprehension of bias in the circum
stance that both the case presenting officer and the
Adjudicator were officers of the Department of
Employment and Immigration. For the respondent
it is said that the Adjudicator acted properly. She
would not have done so, for instance, had she
discussed the matter privately with the case pre
senting officer. Absence of evidence of actual bias
does not answer the question whether reasonable
apprehension of bias existed in this case.
The applicant relies on the recent decision of
this Court in MacBain v. Lederman, [1985] 1 F.C.
856; (1985), 62 N.R. 117 (C.A.) where it was held
that the applicant therein was entitled not to be
deprived of "a fair hearing in accordance with the
principles of fundamental justice" as provided in
paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III].' In Singh et al. v.
Minister of Employment and Immigration, [1985]
1 S.C.R. 1977, the Supreme Court of Canada gave
the Canadian Bill of Rights new vigour, so much
so that in the MacBain case the existence of a
reasonable apprehension of bias was considered an
infringement of that right notwithstanding that the
infringement had been authorized under the legis
lative scheme. It was evident there, however, that
the applicant had taken great care before the
tribunal not to waive that right either expressly or
impliedly. I mention waiver at this juncture
because in the present case it is not suggested that
the applicant, by appearing before the Adjudica
tor, had waived the right which he now asserts.
The powers of the adjudicator to review a deten
tion and to continue it are found in subsections
104(6) and (7) of the statute:
1o4....
(6) Where any person is detained pursuant to this Act for an
examination, inquiry or removal and the examination, inquiry
or removal does not take place within forty-eight hours from
the time when such person is first placed in detention, that
person shall be brought before an adjudicator forthwith and the
reasons for his continued detention shall be reviewed and
thereafter that person shall be brought before an adjudicator at
least once during each seven day period, at which times the
reasons for continued detention shall reviewed.
(7) Where an adjudicator who conducts a review pursuant to
subsection (6) is not satisfied that the person in detention poses
a danger to the public or would not appear for an examination,
inquiry or removal, he shall order that such person be released
from detention subject to such terms and conditions as he
deems appropriate in the circumstances, including the payment
of a security deposit or the posting of a performance bond.
' No argument based upon possible application of the
Canadian Charter of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)] was addressed to the Court, either orally or in the
written submissions.
The term "adjudicator" is defined in subsection
2(1) of the Act:
2. (1) In this Act,
"adjudicator" means a person appointed or employed under the
Public Service Employment Act for the purpose of carrying
out the duties and functions of an adjudicator under this Act;
and "case presenting officer" is defined in subsec
tion 2(1) of the Immigration Regulations, 1978
[SOR/78-172]:
2. (1) In these Regulations,
"case presenting officer" means an immigration officer who has
been designated by the Minister to represent the Minister at
inquiries;
That both officers are public servants is clear from
the above-quoted provisions, from the definition of
"immigration officer" found in subsection 2(1) of
the statute and from the provisions of subsection
110(1) thereof:
110. (1) Immigration officers shall be appointed or employed
under the Public Service Employment Act.
By subsection 110(2) of the Act the Minister has
power to designate a person or persons to be
immigration officers. We do not know whether the
case presenting officer here was so designated.
An examination of both the statute and the
Regulations enables us to understand something of
the powers and duties of an "adjudicator" and of a
"case presenting officer" as well as the means by
which they are appointed or employed. It may be
fairly inferred that, as public servants, both are
remunerated out of the public purse by the Gov
ernment of Canada. On the other hand, we are left
in the dark in other matters which might be perti
nent. We do not know, for instance, whether the
jobs of these officers placed them in a position
where, either by design or inadvertence, they could
have discussed the case before it was heard. I
repeat that there is no evidence of any private
discussion of the matter by the two officers con
cerned. Again, if office or departmental routine
had required them to report in such a matter to a
common superior, that might provide a basis for
holding a reasonable apprehension of bias existed.
But, once again, there is nothing to indicate such a
practice was followed in this case.
The opinion of de Grandpré J., dissenting, in
Committee for Justice and Liberty et al. v. Na
tional Energy Board et al., [1978] 1 S.C.R. 369
has been accepted in this country as expressing the
modern test for determining the existence of a
reasonable apprehension of bias. Adopting the for
mulation proposed by this Court, he said (at pages
394-395):
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reason
able one, held by reasonable and right minded persons, apply
ing themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter
realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously,
would not decide fairly."
I can see no real difference between the expressions found in
the decided cases, be they `reasonable apprehension of bias',
`reasonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial
and I entirely agree with the Federal Court of Appeal which
refused to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
I have no doubt that the applicant was entitled
to a fair hearing in accordance with the principles
of natural justice including the absence of circum
stances giving rise to a reasonable apprehension of
bias. This Court decided in the MacBain case that
a statutory scheme which had the effect of overrid
ing that right ran afoul of paragraph 2(e) of the
Canadian Bill of Rights and declared it inopera
tive to the extent necessary. The circumstances
here are markedly different from those that
obtained in that case. There, the statute author
ized the respondent Commission to substantiate a
complaint of alleged human rights violations, then
to select a tribunal to hear that complaint and,
finally, to send before that tribunal on its behalf a
solicitor to prosecute the complaint which it had
already substantiated. I can find nothing in the
present case to suggest that the Adjudicator was
specially chosen to conduct this particular review
or, even if that were the case, that she was chosen
by the very person having the ultimate responsibil
ity for opposing the release from custody. She was
but one among several adjudicators in the depart
ment. To me, at least, in the absence of evidence to
the contrary, mere happenstance could just as well
explain the fact that this particular review fell to
be conducted by this particular adjudicator on
October 29, 1985.
In the particular circumstances of this case as
they are known to us, I have concluded that a
reasonable apprehension of bias has not been made
out. The circumstance that the Adjudicator and
the case presenting officer were both public ser
vants employed in the same department of govern
ment, without more, is not such as to give rise to a
reasonable apprehension of bias. An informed
person viewing the matter realistically and practi-
cally—and having thought it through—would not
conclude that it was more likely than not that the
Adjudicator, whether consciously or unconscious
ly, would not decide fairly.
I would therefore dismiss this application.
HEALD J.: I agree.
HUGESSEN J.: I agree.
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.