T-150-88
Mahmoud Mohammad Issa Mohammad (Appli-
cant)
v.
Minister of Employment and Immigration; Minis
ter of State for Immigration; and Governor in
Council (Respondents)
INDEXED AS: MOHAMMAD V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION)
Trial Division, Jerome A.C.J.—Toronto, February
29; Ottawa, March 11, 1988.
Immigration — Deportation — Applicant granted landing
by misrepresenting criminal record — Convicted in 1968 in
Greece of offences relating to attack on Israeli airliner —
Government ordering deportation inquiry — Extensive media
coverage — Certiorari sought quashing s. 27(1) report and s.
27(3) direction for inquiry, and order prohibiting inquiry from
proceeding — Applicant given adequate information and op
portunity to satisfy Governor in Council or Minister of
rehabilitation — Decision to hold inquiry administrative —
Fairness not requiring applicant to be involved in s. 27(3)
deliberations leading to inquiry — Ministers' comments in
House of Commons not indicative of intent to deport without
due process — Dual responsibility of Minister: to be fair to
applicant while upholding laws of Canada — Adjudicators'
expertise combined with right of appeal satisfying require
ments of independence and impartiality — Application
dismissed.
Judicial review — Prerogative writs — Certiorari
Quashing report under s. 27(1) Immigration Act, 1976 and
direction for inquiry under s. 27(3) — Prohibition — Appli
cant granted landing by misrepresenting criminal record — No
unfair treatment — Adequate information and opportunity
provided to satisfy Governor in Council and Minister of
rehabilitation — Decision to hold inquiry administrative —
Duty of fairness minimal — Not requiring applicant's involve
ment in s. 27(3) deliberations — Adjudication process not
biased as result of Ministers' comments in House of Commons
— Comments, read in entire context, not indicative of intent to
deport without due process — Adjudicators' expertise and
provision for right of appeal satisfying requirements of
independance and impartiality.
Constitutional law — Charter of Rights — Life, liberty and
security — Applicant misrepresenting criminal record —
Granted permanent resident status — Deportation inquiry
ordered — Whether, as permanent resident, applicant deprived
of Charter rights should deportation order issue.
The applicant and his family were granted permanent resi
dent status in February 1987. In December 1987, the applicant
was asked to report to an immigration officer regarding his
former activities. The Immigration Department had found out
that the applicant had been convicted in Greece, in 1968, of
offences relating to the attack on an Israeli airliner in which
one person was killed. The applicant had two options: to leave
voluntarily or, to submit to a deportation inquiry. He was told
that he would be given until the end of January 1988 to leave
voluntarily. However, on January 20, he was served with a
notice of inquiry. According to the immigration officer, the
government had ordered the inquiry because of pressure from
the media. The applicant seeks an order for certiorari quashing
the report made under subsection 27(1) of the Immigration
Act, 1976 and the direction for inquiry made under subsection
27(3), and an order prohibiting the deportation inquiry from
proceeding. The applicant submits that he was treated unfairly
in that he was not given the opportunity to satisfy either the
Governor in Council that he had been rehabilitated since his
crime or the Minister that it would not be detrimental to the
national interest to allow him to remain in Canada. He further
submits that he is entitled to a higher standard of fairness than
was required in Kindler v. MacDonald, [1987] 3 F.C. 34
(C.A.) since, as a permanent resident, he will be deprived of his
rights under the Charter should a deportation order issue. With
respect to the relief of prohibition, the applicant asserts that the
adjudication process has been tainted with bias because of
certain Ministers' comments in the House of Commons alleged
ly indicating that a decision had been made prior to the inquiry.
It is further submitted that the inquiry would infringe his right
to be heard by an independent and impartial tribunal in view of
the position of the adjudicator within the Department (the
institutional bias argument).
Held, the application should be dismissed.
The applicant's argument that he was treated unfairly in that
he was not given the opportunity to satisfy either the Governor
in Council or the Minister, was rejected. The applicant had
relied on the Immigration Appeal Board decision in Simpson v.
Canada (Minister of Employment & Immigration) which
stands for the proposition that an applicant must be given the
opportunity to satisfy the Minister as to his rehabilitation. No
authority could be cited where the Simpson principle had been
applied to persons who attained landing by misrepresenting
their criminal record. Moreover, the words "have satisfied the
Governor in Council (or Minister)" in paragraphs 19(1)(c) and
(e) of the Act are in the past tense, thereby providing an
exemption for those who have already taken steps to show their
rehabilitation. Finally, adequate information and opportunity
to make submissions were provided in this case. The immigra
tion officer fairly outlined the Department's concerns and the
legislative provisions at play. The applicant was given the
opportunity to consult counsel. It is significant that it is still
open to the applicant in the course of the proceedings under
subsection 32(2) or paragraph 72(1)(b) to establish his
rehabilitation. The immigration officer was not required, in the
circumstances of this case, to do anything further before a
report could be prepared. The officer was therefore within her
jurisdiction to make the report.
The applicant's argument based on the Federal Court of
Appeal decision in Kindler v. MacDonald fails. In that case, it
was held that the decision to order an inquiry under subsection
27(3) was an administrative one. The duty of fairness was
found to be minimal. As MacGuigan J. pointed out the decision
involved is "merely a decision to hold a hearing, not to deprive
the applicant of his rights to life, liberty or security of the
person". The ruling in Kindler as to the nature of a subsection
27(3) decision is unrelated to the status of the individual before
the Court. It applies to persons having an illegal status (such as
Kindler) as well as to landed immigrants (such as the applicant
herein). The latter retains throughout the inquiry process
important substantive and procedural rights (see subsections
70(1) and 72(1) of the Act). Fairness does not require that he
be involved in the subsection 27(3) deliberations which lead
only to the conduct of an inquiry.
The argument that the decision to hold an inquiry was taken
for an improper motive since it resulted from media coverage
and from statements made by the Ministers in the House of
Commons also fails. There were no statements of intent to
deport without due process. What was indicated by the
respondents' representatives was that, because of the high
profile of the case, the applicant would have to accelerate his
choice to leave the country voluntarily or stay and submit to an
inquiry. The applicant delayed and the inquiry was ordered.
The immigration considerations which led to the decision were
valid.
The submission that the adjudication process has been taint
ed with bias because of the Ministers' comments in the House
of Commons was rejected. The Minister of Employment and
Immigration is required, under the scheme of the Act, to take a
position with regard to each applicant. He has a dual responsi
bility: he must be fair to the applicant while upholding the laws
of Canada and the policies of Parliament. That position must
always be determined before the case is heard. The process does
not become improper because the Minister has stated his
position publicly. Moreover, the comments complained of must
be placed in their context. In situations where bias is allegedly
revealed in a public address, it has been held that the address
must be considered as a whole, not minutely examined. Here,
other portions of the Hansard transcript indicated that due
process would be applied and that all necessary legal proce
dures would be followed. Finally, the persons delivering the
controversial remarks were not the decision-makers, unlike the
usual cases where the "speaker" is the decision-maker. While
the Ministers' comments might have been more temperate,
nevertheless, placed in their proper context, they did not have
the effect of tainting the adjudicative process with bias.
The submission that the adjudicator's position is tainted by
institutional bias is also without merit. The structure and
practice of the Adjudication Directorate of the Department
need not provide for a tribunal which enjoys the same degree of
independence as a court or even as the Immigration Appeal
Board. The adjudicators fall somewhere between the other
employees of the Department and the members of the Immi
gration Appeal Board in terms of independence. The adjudica-
tive system provides for an initial decision by a person within
the Department who has been trained in the relevant subject
areas; it also provides for appeals to a more independent
tribunal. This combination of expertise and the right of appeal
was held in MacKay v. The Queen, [1980] 2 S.C.R. 370 to
satisfy the requirements of independence and impartiality. The
adjudicator must be free from real or apparent interference in
his decision making process. That standard has been met. There
was no evidence that a Minister has ever directed an adjudica
tor to decide in a particular way.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
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. 7.
Criminal Code, R.S.C. 1970, c. C-34, ss. 76.2(b) (as
added by S.C. 1972, c. 13, s. 6), 83(1)(a) (as am. by
S.C. 1976-77, c. 53, s. 3), 217.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
19(1)(c),(e), 27(I)(a),(e),(3), 32(2), 59, 60, 61, 70(1),
72(1).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Kindler v. MacDonald, [1987] 3 F.C. 34 (C.A.); Cac-
camo v. Minister of Manpower and Immigration, [1978]
1 F.C. 366; (1977), 16 N.R. 405 (C.A.); affg [1977] 2
F.C. 438 (T.D.).
APPLIED:
Van Rassel v. Canada (Superintendent of the RCMP),
[1987] 1 F.C. 473 (T.D.).
DISTINGUISHED:
Simpson v. Canada (Minister of Employment & Immi
gration) (1987), 3 Imm. L.R. (2d) 20 (I.A.B.); Tsang v.
Canada (Minister of Employment & Immigration), deci
sion dated 7/1/88, I.A.B., not yet reported; Roncarelli v.
Duplessis, [1959] S.C.R. 122; Re Multi-Malls Inc. et al.
and Minister of Transportation and Communications et
al. (1976), 14 O.R. (2d) 49 (C.A.); R. c. Vermette,
[1984] C.A. 466; (1984), 16 C.C.C. (3d) 532 (Que.); R.
v. Pickersgill et al., Ex parte Smith et al. (1970), 14
D.L.R. (3d) 717 (Man. Q.B.).
DÉCISIONS CITÉES:
Anderson v. Minister of Employment and Immigration,
[1981] 2 F.C. 30; (1980), 113 D.L.R. (3d) 243 (C.A.);
Muliadi v. Canada (Minister of Employment and Immi
gration), [1986] 2 F.C. 205 (C.A.); Fulay v. Minister of
Employment and Immigration, T-152-83, Jerome A.C.J.,
order dated 19/4/84, F.C.T.D., not reported; Singh et al.
v. Minister of Employment and Immigration, [1985] 1
S.C.R. 177; 14 C.R.R. 13: Valente v. The Queen et al.,
[1985] 2 S.C.R. 673; Committee for Justice and Liberty
v. National Energy Board, [1978] 1 S.C.R. 369; The
Judges v. Attorney-General for Saskatchewan (1937), 53
T.L.R. 464 (P.C.); MacKay v. The Queen, [1980] 2
S.C.R. 370.
AUTHORS CITED
Canada, Débats de la Chambre des communes, vol. 129,
n° 236, 2° Sess., 33° Lég. 18 janvier 1988, la p. 12001.
Canada, Débats de la Chambre des communes, vol. 129,
n° 237, 2e Sess., 33° Lég. 19 janvier 1988, aux p. 12055,
12057.
Canada, Débats de la Chambre des communes, vol. 129,
n° 238, 2° Sess., 33° Lég. 20 janvier 1988, la p. 12095.
Canada, House of Commons Debates, Vol. 129, No. 236
2nd Sess., 33rd Parl. January 18, 1988, at p. 12001.
Canada, House of Commons Debates, Vol. 129, No. 237,
2nd Sess., 33rd Parl. January 19, 1988, at pp. 12055,
12057.
Canada, House of Commons Debates, Vol. 129, No. 238,
2nd Sess., 33rd Parl. January 20, 1988, at p. 12095.
COUNSEL:
Marlys Edwardh, Barbara Jackman and
Lorne Waldman for applicant.
David Sgayias and Michael Duffy for
respondents.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: The applicant seeks orders of
certiorari and prohibition quashing the subsection
27(1) report on him [Immigration Act, 1976, S.C.
1976-77, c. 52] and the direction for inquiry under
subsection 27(3) and prohibiting the adjudicator
from proceeding to hear his case.
The applicant entered the country with his
family on February 25, 1987 pursuant to visas
issued them in Spain. At time of entry they were
granted permanent resident status.
On December 21, 1987 the applicant spoke on
the telephone with Mr. C. Fiamelli, an immigra
tion officer, who requested that he come in for an
interview regarding his background, his previous
activities and a problem that had arisen. The
interview took place December 29, 1987. At the
interview Mr. Fiamelli showed the applicant three
files and some photographs. The applicant under
stood from these that the Immigration Department
now knew he had been convicted in Greece in 1968
of offences relating to the attack on an Israeli El
Al Airliner in which one person was killed.
Mr. Fiamelli offered the applicant two options.
One was to leave the country voluntarily, in which
case no enforcement proceedings would be taken.
His family would be permitted to stay in Canada
and he could visit them if he obtained a Minister's
permit. Mr. Fiamelli suggested that the applicant
would be given until the end of January to leave
voluntarily.
The second option, if he did not leave voluntari
ly, was a deportation inquiry. If an order was
made as a result, his family would be affected as
well. The applicant was informed of the three
grounds on which an inquiry would be held. Mr.
Fiamelli wrote down the relevant section numbers
and gave them to him.
At the end of the interview the applicant
indicated he wished to speak with his lawyer. He
met with his solicitor, Mr. Brian Pennell, on
December 31, 1987 and told him everything Mr.
Fiamelli had said. Mr. Pennell contacted Mr. Fia-
melli and arranged a meeting for January 15,
1988, which the lawyer later had to postpone.
Several telephone calls between Mr. Pennell and
Mr. Fiamelli followed.
On January 20, 1988 the applicant met with his
lawyer and Mr. Fiamelli and was served with a
notice of inquiry. The applicant expressed surprise
at this because he had understood he would have
until the end of January before an inquiry was
instituted.
The inquiry commenced on January 25, 1988.
Before it began Mr. Fiamelli told the applicant, in
response to his question, why an inquiry was being
held, that the government had ordered it because
of pressure resulting from the media.
The applicant claims he was not aware or
informed by Mr. Fiamelli that he could make
representations to the Governor in Council or the
Minister to show that he had been rehabilitated
since his crime, that it would not be detrimental to
the national interest to allow him to remain in
Canada or that an inquiry should not be held for
humanitarian and compassionate reasons. Counsel
for the applicant conceded, however, that the
interview Mr. Fiamelli had with the applicant was
quite proper. The criticism is that the officer did
not do enough because he did not go on to elabo
rate, not only on the applicant's options, but also
as to how he might pursue them.
The further facts relied on by the applicant are
that on January 18, 19 and 20, 1988 three Minis
ters of the Crown, the Solicitor General, the Min
ister of Employment and Immigration and the
Minister of State for Immigration, made a series
of statements in the House of Commons and else
where concerning the applicant's case. The Han-
sard transcript for those days was submitted in
evidence and reveals that the Ministers stated,
among other things, that the applicant had given
false information in order to get into Canada, that
he was a convicted terrorist and that the govern
ment's primary objective was to get this man out
of the country.
The statutory provisions relevant to this applica
tion are sections 19(1)(c) and (e), 27(1)(a) and (e)
and 27(3) of the Immigration Act, 1976:
19. (1) No person shall be granted admission if he is a
member of any of the following classes:
(c) persons who have been convicted of an offence that, if
committed in Canada, constitutes or, if committed outside
Canada, would constitute an offence that may be punishable
under any Act of Parliament and for which a maximum term
of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council
that they have rehabilitated themselves and that at least five
years have elapsed since the termination of the sentence
imposed for the offence;
(e) persons who have engaged in or who there are reasonable
grounds to believe will engage in acts of espionage or subver
sion against democratic government, institutions or pro
cesses, as they are understood in Canada, except persons
who, having engaged in such acts, have satisfied the Minister
that their admission would not be detrimental to the national
interest;
27. (1) Where an immigration officer or peace officer has in
his possession information indicating that a permanent resident
is a person who
(a) if he were an immigrant, would not be granted landing
by reason of his being a member of an inadmissible class
described in paragraph 19(1)(c), (d), (e) or (g) or in para
graph 19(2)(a) due to his having been convicted of an
offence before he was granted landing,
(e) was granted landing by reason of possession of a false or
improperly obtained passport, visa or other document per
taining to his admission or by reason of any fraudulent or
improper means or misrepresentation of any material fact,
whether exercised or made by himself or by any other person,
or
he shall forward a written report to the Deputy Minister setting
out the details of such information.
(3) Subject to any order or direction of the Minister, the
Deputy Minister shall, on receiving a report pursuant to subsec
tion (I) or (2), and where he considers that an inquiry is
warranted, forward a copy of that report and a direction that
an inquiry be held to a senior immigration officer.
The applicant's arguments with respect to these
provisions are divided into three major compo
nents, one of which was dealt with by each of his
three counsel. These are: certiorari, prohibition
and remedies.
I: Certiorari
The applicant attacks each of the subsection
27(1) report and the subsection 27(3) inquiry
direction on the grounds of jurisdiction and
fairness.
A: Subsection 27(1) report
The report is based on three grounds. The appli
cant is alleged to be described in paragraphs
27(1)(a) and 27(1)(e) because
1. he is a person who, if he were an immigrant,
would not be granted landing by reason of his
being a member of an inadmissible class
described in paragraph 19(1)(c) as he has been
convicted of an offence before he was granted
landing;
2. he is a person who, if he were an immigrant,
would not be granted landing because he is
described in paragraph 19(1)(e), namely a
person who has engaged in acts of espionage or
subversion against democratic government,
institutions or processes and
3. he is described in paragraph 27(1)(e)
because he is a person who was granted landing
by reason of misrepresentation of a material
fact.
The facts given in the report to support these
grounds are: that the applicant was convicted on
March 26, 1970 at Athens, Greece of offences
equivalent to those under sections 217, 83(1)(a)
[as am. by S.C. 1976-77, c. 53, s. 3] and 76.2(b)
[as added by S.C. 1972, c. 13, s. 6] of the Canadi-
an Criminal Code [R.S.C. 1970, c. C-34] which
carry maximum sentences of over 10 years; that he
has committed a terrorist act and is a member of
the Popular Front for the Liberation of Palestine
which is dedicated to the overthrow of the Israeli
government; and that he was granted landing by
misrepresentation in that he stated on his applica
tion he had never been convicted of a criminal
offence.
It should be noted first that the applicant does
not dispute the third ground for the report: mis
representation. As a result, his request to quash
the entire report cannot be granted as that ground
alone is sufficient to sustain it. He does oppose the
other two grounds. If they were removed from the
report they could not be considered by the inquiry
adjudicator: Anderson v. Minister of Employment
and Immigration, [1981] 2 F.C. 30; (1980), 113
D.L.R. (3d) 243 (C.A.). It is therefore worthwhile
to consider his arguments on those two points.
The basic jurisdictional argument with respect
to both paragraph 27(1)(a) grounds is that the
officer signing the report did not, as required by
the paragraph, have in her possession information
with respect to all the elements of pararaphs
19(1)(c) and (e). Specifically, she did not know
whether the applicant had satisfied the Governor
in Council that he had rehabilitated himself and
that at least five years had elapsed since his sen
tence terminated or whether he had satisfied the
Minister that his admission would not be detri
mental to the national interest.
It is not alleged that the applicant had satisfied
the Governor in Council or the Minister as to these
facts. It is also not disputed that the immigration
officer knew he had not so satisfied those officials.
What is submitted is that, before a report could be
written, the officer had to know that the applicant
had been given the opportunity to satisfy them and
had been unsuccessful. It is alleged that the
report's author could not possibly have had that
knowledge as the applicant was not given that
opportunity. I do not accept that argument. For
the reasons which follow, I do not believe the
applicant was entitled to any further opportunity
to make submissions beyond what he was given.
The immigration officer was therefore within her
jurisdiction in making the report.
The second ground for attack on the report is
that the applicant was not treated fairly. The
applicant has submitted case law to establish that
a person applying to enter Canada who has had a
conviction must be given an opportunity to show
he has been rehabilitated. (There is no similar
jurisprudence with respect to paragraph 19(1)(e)
but applicant submits the same principles would
apply by analogy.) The cases which deal directly
with this point are decisions of the Immigration
Appeal Board: Simpson v. Canada (Minister of
Employment & Immigration) (1987), 3 Imm. L.R.
(2d) 20, dated July 16, 1987 and Tsang v. Canada
(Minister of Employment & Immigration), dated
January 7, 1988 [not yet reported].
In the Simpson decision the Board held that the
principles of administrative fairness outlined in
Muliadi v. Canada (Minister of Employment and
Immigration), [1986] 2 F.C. 205 (C.A.) required
that the applicant be made aware of the fact that
he had to satisfy the Minister as to his rehabilita
tion and that he be given the opportunity to do so.
Two facts should be noted about that case: first,
the applicant had been convicted of a very minor
offence and there is no indication he attempted to
conceal it. Second, the respondent conceded that
there were sufficient humanitarian or compassion
ate grounds to allow the appeal.
In the Tsang case the Simpson decision was
applied to an applicant who had apparently initial
ly lied about his conviction but was found out
before landing was granted. It was a more major
offence. Again, the lack of opportunity to satisfy
the Governor in Council rendered the landing
refusal invalid.
The fact that this applicant had actually been
granted landing before this issue came up is an
important distinction from the two Immigration
Appeal Board cases. Counsel could provide no
instances where the Simpson principle has been
applied to persons who attained landing by mis
representing their criminal record.
Counsel also maintains that Commission prac
tice, as outlined in the Immigration Manual, is to
give an opportunity to show rehabilitation. The
affidavit evidence of an immigration practitioner
was that people illegally in Canada are also given
an opportunity to prove rehabilitation. By the prin
ciples in Fulay v. Minister of Employment and
Immigration not reported, April 19, 1984, Court
No. T-152-83, it was argued that this applicant
should have been treated equally with others in the
same position.
There are several reasons this argument should
not succeed. First, it is not clear that the words of
the statute will support the generous interpretation
given them by the Immigration Appeal Board. The
phrase "have satisfied the Governor in Council (or
Minister)" is clearly in the past tense and seems to
provide an exemption for people who have already
taken steps to show their rehabilitation.
Second, adequate information and opportunity
to make submissions were provided in this case.
Following his first interview with Mr. Fiamelli, the
applicant knew all the concerns the Immigration
Department had with respect to his background,
knew the specific incidents which had caused those
concerns, knew the grounds on which an inquiry
would proceed if necessary and knew which sec
tions of the Act were being applied. He expressed
the intention of discussing all of this with his legal
representative, which he did, and Mr. Pennell then
had the opportunity to discuss the matter with Mr.
Fiamelli, which he did. Two further telephone
conversations between Mr. Pennell and Mr. Fia-
melli conveyed the information that the matter
was becoming more urgent and that some deci
sions would have to be made soon. Those occasions
offered other opportunities to forestall a report and
inquiry by providing more information. There was
no requirement, in the circumstances of this case,
for Mr. Fiamelli to do anything further before a
report could be prepared on Mr. Mohammad.
I also consider it significant that it is still open
to the applicant, as the respondent points out, to
attempt to satisfy the Minister and Governor in
Council. Counsel for the applicant questioned
whether even a proper determination of those
issues by the appropriate Ministers would be ad
missible in evidence before either the adjudicator
or the Immigration Appeal Board after the subsec
tion 27(1) report has been written and upheld. I do
not have the same concern. Under subsection
32(2) the adjudicator must determine whether a
permanent resident is a person described in subsec
tion 27(1). That necessarily involves a determina
tion of whether the Minister and Governor in
Council have been satisfied as to his rehabilitation
or admissibility in the national interest. Similarly,
on an appeal to the Immigration Appeal Board
under subsection 72(1) the Board must consider
whether, having regard to all the circumstances of
the case, the person should be removed from
Canada (paragraph 72(1)(b)). The satisfaction of
the Minister as to his rehabilitation or admissibili
ty would surely be a most relevant factor in
making that decision. Indeed, at the close of the
hearing, counsel for the applicant urged that, in
the event I find that the inquiry should proceed, I
order the Minister to consider the questions raised
by paragraphs 19(1)(c) and (e) before the inquiry
resumes. Clearly then, completion of the subsec
tion 27 (1) report has not forestalled the applicant's
ability to establish his rehabilitation or admissibili
ty in the national interest.
In my opinion, therefore, neither of the grounds
for striking out the subsection 27(1) report have
been made out.
B: Subsection 27(3) Inquiry Direction
This document is also attacked on the grounds
of jurisdiction and fairness. On the first ground, it
is argued that the Deputy Minister or other offi
cial who orders an inquiry to be held must ensure
that a prima facie case against the applicant
exists. The argument is that since the subsection
27(1) report was deficient, a prima facie case
could not have been shown here. In light of the
finding of validity of the subsection 27(1) report,
this argument must fail.
On the fairness issue, the applicant begins by
seeking to distinguish Kindler v. MacDonald,
[1987] 3 F.C. 34 (C.A.). In that case it was held
that the decision to order an inquiry under subsec
tion 27(3) is a purely administrative one. All the
Deputy Minister had to decide was whether an
inquiry is warranted, which he can do on the
existence of a prima facie case. The duty of fair
ness in such a decision was found to be minimal.
MacGuigan J. continued as follows at pages 40-41:
What I find most important in this respect is that the
decisions involved are merely decisions with respect to the
respondent, not against him. In fact, they might be said to be
for him, since he is not only to have a hearing but by subsection
30(1) of the Act has the right to be represented by counsel. In
other words, it is not a decision to deprive the respondent of his
life, liberty, security of the person or even of his property, and
so does not fall under the principle that there is "a duty of
procedural fairness lying on every public authority making an
administrative decision which is not of a legislative nature and
which affects the rights, privileges or interest of an individual",
affirmed by the Supreme Court in Cardinal et al. v. Director of
Kent Institution, [1985] 2 S.C.R. 643, at page 653 (emphasis
added).
In fact, it would to my mind be ludicrous to require even a
paper hearing in such circumstances with respect to the deci
sion to grant a hearing. If that were the law, why would there
not be a still earlier hearing with respect to that decision to
hold a hearing, and so on in infinite regression? Provided that
the official decisions made are taken in good faith, I cannot see
how they can be lacking in fairness, and the Trial Judge has
found as a fact that there is no evidence of bad faith.
The applicant seeks to distinguish this case on
its facts. Mr. Kindler, it is said, was illegally in the
country, having fled here to escape arrest in the
U.S. The case therefore applies only to people
without status in Canada who have no rights to be
deprived of. Because of the decision in Singh et al.
v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; 14 C.R.R. 13, the applicant
submits the position of a permanent resident is
very different. He has the right to fair treatment
under the Charter [Canadian Charter of Rights
and Freedoms, being part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)], the right to remain in Canada and to
choose where he will travel and the right to seek
citizenship. He will be deprived of all of this on the
making of a deportation order.
That argument fails in this case because the
decision here is to order an inquiry, not deporta
tion. However, the applicant also maintains that
even the decision to hold an inquiry will adversely
affect his rights. Once the subsection 27(3) direc
tive is issued, he will be subject to detention or, as
is already his case, to release on certain restrictive
conditions. There is also the argument that he and
his family will be under stress, possibly for years,
while his case winds its way through the hearing
and appeal process. The applicant's counsel there
fore concludes that he should have been given an
opportunity to make submissions as to why an
inquiry was not warranted before the directive
issued.
The applicant has overstated the consequences
of the initiation of the inquiry process. As Mac-
Guigan J. points out in Kindler this is merely a
decision to hold a hearing, not to deprive him of
his rights to life, liberty or security of the person.
The consequences which do flow from the inquiry
directive, the duty to report and appear for his
hearing, are entirely proportionate to the purpose
for which they were instituted—i.e. ensuring he
attends.
The submission on behalf of the applicant also
understates his rights, which remain his through
out this process. As a landed immigrant he has the
right to appeal any removal order made against
him to the Immigration Appeal Board (subsection
72(1)). He also has the right to suspend the inqui
ry at any time by filing a claim to be a Convention
refugee. He has the right to have that claim
determined by the Refugee Status Advisory Com
mittee and then to have it redetermined by the
Immigration Appeal Board (subsection 70(1)).
Throughout the inquiry process the applicant will
retain these important substantive and procedural
rights.
I am not persuaded that the Kindler decision
has been successfully distinguished. The Court of
Appeal finding as to the nature and requirements
of a subsection 27(3) decision had nothing to do
with the status of the individual before them. I see
no reason why the judgment should not apply with
equal force to a landed immigrant who, as we have
seen, retains considerable rights after the decision
is made. Even if I disagreed with that decision, and
I do not, I would be bound by it. On the contrary,
I find the reasoning of the Court of Appeal entire
ly appropriate to this situation. Fairness does not
require that this applicant be involved in the delib-
erations or decision under subsection 27(3) which
lead only to the conduct of an inquiry.
The second argument on the fairness issue is
that the decision to hold an inquiry was taken for
an improper motive. It is argued that the official
responsible for that decision was affected by the
statements of the Ministers in the House and by
media coverage of the case. Evidence of this is
found in Mr. Fiamelli's statement to the claimant.
The cases of Roncarelli v. Duplessis, [1959]
S.C.R. 122 and Re Multi-Malls Inc. et al. and
Minister of Transportation and Communications
et al. (1976), 14 O.R. (2d) 49 (C.A.) are cited for
the proposition that a discretionary power is not to
be exercised for an improper purpose or on the
basis of collateral or extraneous considerations. In
both those cases, I note that the grievance was that
executive action was taken without affording the
aggrieved party the proper opportunity to make
representations. In Multi-Malls a decision about
the development of property was allegedly taken
for political motives. Roncarelli v. Duplessis, of
course, was the very famous case of the tavern
licence which was suspended because of the reli
gious affiliation of the owner. It was the denial of
a proper hearing in both cases which led to the
Court's decision.
The situation in the case before us is exactly the
reverse. The decision at issue here is to afford the
applicant the opportunity to appear at an
adjudicative process, represented by counsel, and
make his case for being allowed to stay in Canada.
That process will unfold as it does with every
immigrant in a similar situation. The most that
has happened in this case is that during the period
between late December and late January, the
matter attracted great public attention. As a
result, the Ministers involved and the representa
tives of the respondent Department indicated a
desire to push the applicant's case along. Had
there been a statement of intent to deport without
due process the matter would resemble the bias
cases put forward by the applicant. But that is not
what happened. What was indicated by the
respondents' representatives was that, because of
the high profile of the case, the process would have
to move forward and the applicant would therefore
have to accelerate his choice as to whether he
wished to leave the country voluntarily or stay and
submit to the same process as others in his posi
tion. The applicant delayed and the inquiry was
ordered. It is clear from the record that valid
immigration considerations were what led to that
decision, and I do not find that the inquiry direc
tive was issued for an improper purpose.
For these reasons, the application to quash the
subsection 27(1) report and the subsection 27(3)
directive must fail.
II: Prohibition
The applicant asks that an order issue prohibit
ing the deportation inquiry from proceeding. He
submits that the inquiry will infringe his rights
under section 7 of the Charter for two reasons:
first, the adjudication process has been tainted
with bias because of the Ministers' comments
which indicate that a decision regarding his case
has already been made. Second, the inquiry would
infringe his right to be heard by an independent
and impartial tribunal because of the position of
the adjudicator within the Department of Employ
ment and Immigration.
Some argument was addressed as to whether
these concerns are relevant to the proceedings at
issue here. I am prepared to accept that this
inquiry, at least potentially, may affect the liberty
and security rights of the applicant. I am also
prepared to accept that the role of the adjudicator
is a judicial or quasi-judicial one. It is therefore
apparent that the inquiry proceedings are subject,
to an appropriate degree, to the rules of natural
justice. Those rules include the requirement that a
hearing be conducted by an impartial and
independent tribunal.
The applicant alleges that the adjudicator in this
case is neither. First, he claims that the Ministers'
statements prejudged his case and put pressure on
the adjudicator to decide in the same way. This, it
is alleged, introduced bias into the adjudication
process.
The test for fatal bias was set out in Valente v.
The Queen et al., [1985] 2 S.C.R. 673, at page
684, citing de Grandpré J. in Committee for Jus
tice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369, at page 394, as follows:
... what would an informed person, viewing the matter realisti
cally and practically—and having thought the matter
through—conclude ....
In this case, it is submitted that the remarks of
the Minister of Employment and Immigration, the
Minister of State for Immigration and the Solici
tor General direct the adjudicator as to the order
he must make. The comments in question are the
following:
Hon. Gerry Weiner (Minister of State (Immigration))
[January 20, 1988] .... Our primary objective is to get this
man out of the country. He either leaves because of the threat
of deportation or because of a deportation order issued under
due process. [Emphasis added.]
Hon. James Kelleher [January 18, 1988]:... the gentleman
is in Canada because he gave false and misleading evidence to
our liaison officer in Spain. [Emphasis added.]
Hon. Benoit Bouchard [January 18, 1988]: Mr. Speaker, the
same false information given to the security agency in Spain
was used to gain access to Canada. [Emphasis added.]
Hon. Gerry Weiner [January 19, 19881: Mr. Speaker,
Canada cannot and will not become a safe haven for terrorists.
... Our intent is to apply the full force of the law to ensure
the expulsion of this individual from Canada. Terrorists will not
be allowed to remain in this country. [Emphasis added.]
Hon. Gerry Weiner [January 20, 1988]: The man is here
illegally as a convicted terrorist. Our primary objective is to get
this man out of the country. [Emphasis added.] *
It is alleged that these remarks constitute pre
judgment of the very issues to be decided by the
adjudicator and that they would lead an informed
person, viewing the matter practically and realisti
cally, to conclude there was a reasonable appre
hension of bias.
The applicant cites, in support of this proposi
tion, the decision in R. c. Vermette, [ 1984] C.A.
* Editor's Note: Excerpts cited from the House of Com
mons Debates, Vol. 129, Nos. 236, 237, 238, 2nd Sess., 33rd
Parl. January 18, 19, 20, 1988, at pp. 12001, 12055 and 12095
respectively.
466; (1984), 16 C.C.C. (3d) 532 (Que.). In that
case an RCMP officer had been charged with
burglary in connection with an investigation of the
Parti Québécois. Some of the evidence given at the
trial prompted a question for the Premier in the
National Assembly. The Premier responded at
some length, using colourful language, and cast
aspersions on the accused, his witness and mem
bers of the federal government. His remarks were
given wide publicity and caused the Trial Judge to
declare a mistrial. An application was brought for
an indefinite stay of proceedings under subsection
24(1) of the Charter which was granted and
upheld on appeal. The Court of Appeal held that
the accused could not be given a fair trial by an
impartial jury in light of the fact that he had
already been tried and convicted publicly by the
head of government.
The applicant maintains that the Vermette case
is analogous to the one at bar. There are, however,
several distinguishing features. First, Vermette
was charged with a criminal offence, so the full
panoply of procedural rights under section 11 of
the Charter came into play, rather than the less
defined "principles of fundamental justice" under
section 7. Second, the concern was not with direc
tion by the head of an institution in which the
adjudicator was employed, but with a public find
ing of guilt on the part of the head of government,
from which the majority of the Court did not
believe a jury could free itself. Third, the Premier
apparently did not in any way qualify his remarks
by upholding the necessity of a proper judicial
proceeding.
There are several reasons why the comments by
the Ministers here should be seen in a different
light from those of the Premier in Vermette. First,
unlike the Premier, the Minister of Employment
and Immigration is required, under the scheme of
the Act, to take a position with regard to each
applicant for admission and each immigrant inves
tigated as being here illegally. He has a dual
responsibility in these cases: he must be fair to the
applicant or immigrant, but he also has the obliga
tion to uphold the laws of Canada and the policies
of Parliament. His involvement in the adjudication
process is to ensure that fairness is extended to the
people of Canada as well as to the applicant.
This dual role is not unique among ministerial
responsibilities. I consider, for example, the situa
tion of the Minister of Health and Welfare who
has the responsibility for bringing patented medi
cines onto the market. He also has the duty to
protect the Canadian consumer from impure or
hazardous products.
In the immigration process, the Minister's posi
tion is never a secret. In every one of the thousands
of these cases which are brought every year, the
Minister instructs a case presenting officer, whose
job it is to put before the adjudicator, in a public
hearing, the Department's theory of the case. That
position must always be determined before the
case is heard. I do not see that the process becomes
an improper one just because the Minister has
stated that position publicly.
Second, it is important that the comments com
plained of here be placed in context. In addition to
the comments cited above, other portions of the
Hansard transcript were also quoted to me which
indicated that due process had been and would be
applied with respect to the applicant and that all
necessary legal procedures would be followed. For
example, on January 19, 1988 the Solicitor Gener
al indicated [at page 12057]:
Heinous as the crime is, and as much as we would like to get
rid of this gentleman as quickly as possible, the due process of
the law must be followed. We must have a sustainable case.
In situations where bias is allegedly revealed in
a public address, it has been held that the address
must be considered as a whole, not minutely exam
ined. The test is whether prejudice is betrayed in
the speaker's words when they are considered as
an integrated whole. (R. v. Pickersgill et al., Ex
parte Smith et al. (1970), 14 D.L.R. (3d) 717
(Man. Q.B.), at page 728.) When taken as a
whole, the Ministers' comments in this case appear
to me to state a position with respect to a matter
which must still go through a legal process, not a
conclusion as to what the outcome of that process
should be.
More importantly, as distinguished from the
Pickersgill case, here the "speaker" is not the
decision-maker. Normally where bias is alleged to
flow from a controversial speech, the person deliv
ering it is the one who must make the decision. At
this stage of the inquiry process, the Ministers do
not determine the applicant's fate. The decision is
made by the adjudicator.
A decision raised by the respondent, Van Rassel
v. Canada (Superintendant of the RCMP), [1987]
1 F.C. 473 (T.D.), dealt with precisely this situa
tion. In that case a member of the RCMP was
before a service tribunal on charges under section
25 of the Royal Canadian Mounted Police Act
[R.S.C. 1970 c. R-9]. While his case was pending,
the Commissioner commented publicly in a critical
manner on the activities of the charged member. It
was argued that, as the Commissioner had
appointed the members of the tribunal, his com
ments resulted in a reasonable apprehension of
bias on the part of the tribunal. Joyal J. of this
Court found as follows at page 487:
Assuming for the moment that the document is authentic
and that the words were directed to the applicant, it would not
on that basis constitute the kind of ground to justify my
intervention at this time. The Commissioner of the RCM Police
is not the tribunal. It is true that he has appointed the tribunal
but once appointed, the tribunal is as independent and as
seemingly impartial as any tribunal dealing with a service-
related offence. One cannot reasonably conclude that the bias
of the Commissioner, if bias there is, is the bias of the tribunal
and that as a result the applicant would not get a fair trial.
Here, as well, there is no reason to conclude that
the prejudices of the Ministers (if any) are those of
the adjudicator.
It would have been better, of course, if the
remarks of the Ministers had been more temperate
in nature. However, that fact alone will not serve
to taint the entire adjudicative process. This ques
tion was canvassed in Caccamo v. Minister of
Manpower and Immigration, [1978] 1 F.C. 366;
(1977), 16 N.R. 405 (C.A.). In that case the
Director of Information for the Department of
Manpower and Immigration had made some
public comments outlining the Department's posi-
tion on the applicant's case. The applicant
attempted to argue, as here, that all adjudicative
officers employed by the Department were dis
qualified from hearing his case because they were
subject to bias flowing from those comments. The
Trial Judge [[1977] 2 F.C. 438] found no reason
able apprehension of bias. The Court of Appeal
noted that acceptance of the applicant's argument
would mean that no person having the authority to
conduct the inquiry would be free from disqualifi
cation. The Court held that even in cases of actual
bias, in the sense of monetary interest, if all eli
gible adjudicating officers are subject to the same
potential disqualification, the law must be carried
out notwithstanding. Jackett C.J. cited [at page
373] the case of The Judges v. Attorney-General
for Saskatchewan (1937), 53 T.L.R. 464 (P.C.)
where the question involved was one affecting the
liability of Saskatchewan judges to pay income
tax. For the Privy Council, Sir Sidney Rowlatt
said, at page 465:
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.
Jackett C.J. continued at pages 373-374 F.C.; 412
N.R..
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 Officer is not disqualified from acting by reason only of
the circumstances established in this case.
On that basis, the appeal was dismissed. The
Court went on, by way of obiter to say that no
reasonable suspicion of bias had been shown. Jack-
ett C.J. said at pages 374-375 F.C.; 413 N.R.:
The doctrine would only come into play where the facts are
such as to create such idea of probability or reasonable suspi
cion in the minds of persons who understand the principle of
independence 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 probability
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
purpose of making deportation orders are by law under the
general direction of the same Minister. To any person who does
understand that apparently 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 deportation. In my view, no
person having any general knowledge of this particular deci-
sion-making process and how it works would think that it was
probable, or be reasonably suspicious, that a Special Inquiry
Officer would be deflected from his statutory duty by such a
background to his inquiry.
This language could apply almost directly to the
case before me. Again, I am bound to follow the
decision of the Court of Appeal.
The applicant also made a very strong argument
that the adjudicator's position in this case is taint
ed by institutional bias. It was argued that any
lack of impartiality resulting from the Minister's
comments is made worse by the lack of indepen
dence enjoyed by adjudicators under the Immigra
tion Act, 1976. The applicant made extensive sub
missions as to the structure and practice of the
Adjudication Directorate of the Department of
Employment and Immigration. The major features
are as follows:
I. Both the Adjudicators and the Case Presenting Officers,
who are part of the Enforcement Branch, are under the direc
tion of the same Associate Deputy Minister. Neither of the
other two tribunals established under the Act are in such a
subordinate position.
2. The same Legal Services Branch of the Department gives
advice to both the Adjudicators and the Case Presenting Unit.
3. The Director of Adjudication formulates policies interpret
ing the legislation and jurisprudence to which Adjudicators are
encouraged to refer in formulating their decisions.
4. The Adjudicator's decisions and proceedings are monitored
by the Director of Adjudication to pinpoint inconsistencies in
the application of the law and training needs and to ensure
inquiries are conducted fairly, efficiently and consistently.
5. Adjudicators are ordinary public servants with no unusual
tenure or oath of office.
6. Adjudicators may be given acting assignments as Immigra
tion Appeal Officers who represent the Minister before the
Immigration Appeal Board. Case Presenting Officers may be
given acting assignments as Adjudicators.
This regime clearly does not provide for a tri
bunal which enjoys the same degree of indepen
dence as a court or even as the Immigration
Appeal Board. Nor do I think it must. Having
reviewed the legislation and the job description
provided by the applicant and bearing in mind the
function and position of the adjudicator in the
immigration system, in my opinion the adjudica
tors should fall somewhere between the other
employees of the Department and the members of
the Immigration Appeal Board in terms of in
dependence. Appeal Board members are appointed
by the Governor in Council for fixed terms which
vary in length and are subject to re-appointment.
They hold office during good behaviour for a term
not exceeding ten years and may be removed for
cause. Their remuneration is fixed by the Gover
nor in Council (Immigration Act, 1976, sections
59-61). Clearly, this is a lesser degree of indepen
dence than that enjoyed by a court. It has obvious
ly been considered appropriate, however, given
that an appeal lies from the Board to the Federal
Court of Appeal. Similarly, an adjudicator's deci
sion may be appealed to the Board. It is therefore
acceptable that, at the stage of the adjudicator's
decision, the tribunal be somewhat less indepen
dent. The adjudicative system under the Immigra
tion Act, 1976 provides for an initial decision by a
person within the Department who has been
trained in the relevant subject areas and an appeal
to a more independent tribunal. This combination
of expertise and right of appeal was held in
MacKay v. the Queen, [1980] 2 S.C.R. 370 to
fully satisfy the requirements of independent and
impartial decision-making (see the reasons of
McIntyre J. at pages 404-405). The important
requirement is that the adjudicator be free from
real or apparent interference in his decision
making in each individual case. (Valente, supra at
page 687.) I am satisfied, on the basis of the
evidence filed, that this standard has been met.
The applicant submitted the affidavit of a
former adjudicator, one Stuart Scott. While sup
porting some of the contentions summarized
above, he also swore to the following facts, on the
basis of his experience:
1. Assignment of adjudicators to cases was
normally rationally based. Most areas, including
Hamilton (where this case will be heard) only
have one adjudicator to hear all cases so no
assignment is necessary (paragraph 13).
It follows from that, of course, that the Minister is
not in a position to change the adjudicator who
will deal with this case, even if he wanted to.
2. He always felt as an adjudicator that the
final decision on a case was solely his and that
he did not have to take direction on substantive
matters of law from his superior officers (para-
graph 14).
3. Adjudicators (who need not be legally
trained) were provided with training and infor
mation on the current state of immigration law
by Adjudication Directorate Staff. Opinions
were issued to promote consistency in decision-
making across Canada which adjudicators were
encouraged, but not instructed, to apply (para-
graph 15).
4. Legal opinions were not only given by the
Commission's Legal Services Branch. There
were also lawyers on the staff of the Adjudica
tion Directorate who provided advice to
adjudicators (paragraph 16).
5. The monitoring of hearings complained of
by the applicant was primarily focused on how
the hearings were conducted (paragraph 19).
6. He never felt he had to make a decision
consistent with a view taken by supervisory offi
cials. He did experience some pressure to con
form to a particular norm of decision making on
particular substantive issues (paragraph 20).
I must conclude from this evidence that, had the
affiant been assigned this case as an adjudicator,
he would have been able to hear it fairly and
independently. There is no evidence that other
adjudicators would be in a different position. In
particular, there is no evidence that a Minister
could or would direct or ever has directed an
adjudicator to decide in a particular way or that
the adjudicator would be expected to follow that
direction if it were given.
That conclusion leads me to find that there is a
necessary measure of separation between the
adjudicators and the Minister and Department in
the regime under which they are appointed and
carry out their responsibilities. Because of that
independence, it follows that the result to be
achieved before the adjudicator in Hamilton would
not be affected or influenced by the Minister's
comments complained of, particularly when they
are placed in context and in the light of the
Minister's responsibility to take a position before
the adjudicator.
III: Remedies
It was argued that, while the remedies sought
here are usually considered discretionary, if I
found an error of jurisdiction in either the issuance
of the subsection 27(1) report or the subsection
27(3) directive, certiorari and prohibition should
issue as of right. I am not sure I would accept that
argument, even if I had found an error of jurisdic
tion, which I have not. The prerogative writs
remain discretionary remedies and there are sever
al factors which militate against issuing them in
this case.
I said several times during the course of argu
ment that the applicant, like any other applicant
for admission to Canada, is the one in control of
the character of the relationship between himself
and the Department. He alone is the one who has
all of the information relevant to the possibility of
re-establishing himself here in Canada. The deci
sion to withhold it or to make full disclosure, to be
forthright and honest or to hold back is one that
agonizes every applicant. Indeed, it is not uncom
mon that people decide to do, to some degree, what
the applicant did here. However, I think it unfair
to suggest that Canada and the immigration pro
cess and the representatives of the respondent
Department must then accept full responsibility
for the consequences which flow from that decision
and that the applicant must accept none of it. That
is essentially the thesis which is put forward on his
behalf.
The applicant had the opportunity to communi
cate with Canadian immigration officials in Spain.
He did so, deciding how much information he
would release and how much he would withhold.
He had a second opportunity when he came to
Canada and he exercised his discretion in the same
way. For several months he was in Canada with
landed immigrant status. One might have thought
that with the intention of establishing himself and
his family here for the long term, it would have
been appropriate for him to initiate full disclosure,
rather than wait for a Department investigation. It
probably would have been beneficial to all con
cerned, but it did not happen.
What did happen, finally, was that he was invit
ed to an interview with Mr. Fiamelli who more
than adequately and fairly explained all of the
considerations which were in play—all of the legis
lative provisions and all of the relevant informa
tion, including the major concerns in the appli
cant's case. They were all very legitimate
immigration concerns. Mr. Mohammad was given
the opportunity to consult counsel, and several
conversations took place between his representa
tive and Mr. Fiamelli. The applicant failed to seek
access to the Minister as provided in paragraphs
19(1)(c) and (e) partly, I am sure, because he
never did disclose the information which might
form the basis for such a request. He must accept
responsibility for that decision.
The high profile nature of the case does not
change these considerations. It is a result of the
seriousness of the crime involved, the way the
applicant got into Canada and the failure to make
full disclosure during any of the available oppor
tunities. It is hardly surprising that the case would
hit the headlines and cause a stir in the House of
Commons. It is also not surprising that those
factors placed pressure on the respondents' repre
sentatives to proceed with dispatch to have this
case adjudicated. I have said that I find nothing
irregular about that situation.
As for the Ministers' comments in the House,
while I have said they might have been more
temperate, nevertheless I do not conclude that, in
their proper context, they had the effect of
destroying the objectivity of the adjudication
process.
As a result, therefore, the application for certio-
rari and prohibition must be dismissed.
At the close of the hearing, applicant's counsel
asked for an order that the adjudication process be
suspended until the applicant is given an opportu
nity to satisfy the Minister as to his rehabilitation
and admissibility in the national interest. That was
not part of the relief sought initially and it was
never argued. I am not even sure I have the
jurisdiction to make such an order. However, while
I do not propose to entertain representations on
this point, I can certainly express the hope that
every accommodation be made for the applicant to
make an early representation to the Minister. In
light of the Immigration Appeal Board's decisions
in Simpson and Tsang, supra, it seems very impor
tant that the applicant be given that opportunity.
This application, however, must be dismissed
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.