T-1916-89
Minister of Employment and Immigration (Appli-
cant)
v.
Lech Borowski (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. BOROWSKI (T.D.)
Trial Division, Joyal J.—Vancouver, October 5, 13
and December 7, 1989; Ottawa, February 16,
1990.
Immigration — Refugee status — Constitutional validity of
s. 30(2) Immigration Act which provides paid legal counsel for
"port of entry" claimants only — Tribunal ruling Charter s.
15 breached, appointing counsel for respondent — Whether
tribunal having power to grant such relief — Jurisdiction of
Refugee Division member as to issues other than eligibility
and credibility.
Constitutional law — Charter of Rights — Limitation
clause — Immigration inquiry — S. 30(2) Immigration Act
(providing paid legal counsel for "port of entry" claimants
only) reasonable and justifiable limit under s. 1 of Charter in
light of legislative purpose to deal with overwhelming refugee
backlog.
This was a section 18 application for an order quashing the
decision of the adjudicator and Refugee Division member (the
tribunal) at an inquiry under subsection 27(4) of the Immigra
tion Act regarding the respondent's inland refugee claim. Coun
sel challenged the constitutionality of subsection 30(2) of the
Act on the grounds it discriminated between inland and port of
entry refugee claimants by providing only the latter with
publicly-funded legal counsel. The adjudicator ruled subsection
30(2) discriminatory, of no force and effect and appointed paid
counsel on behalf of the respondent. The Refugee Division
member concurred in this decision.
Held, the application should be allowed.
Although the tribunal is competent to declare an enactment
in breach of the Charter pursuant to its duty under subsection
52(1) of the Constitution Act, 1982, to declare any law incon
sistent with its provisions of no force and effect, the tribunal is
not competent to fashion a remedy, such being left to a "court
of competent jurisdiction" under section 24 of the Charter.
Even if the impugned legislation were in breach of section 15
of the Charter, it constitutes a reasonable and justifiable limit
under section 1 of the Charter in light of Parliament's intention
to accelerate the disposition of refugee claims when faced with
an overwhelming refugee backlog and the ensuing administra
tive morass especially regarding the large influx of port of entry
claimants.
While the Refugee Board member's decision-making power
is limited to eligibility and credibility issues, Parliament intend
ed the member's continuing presence throughout the inquiry.
To insist, however, on a clear-cut separation of functions would
defeat the purpose of the new procedure which requires a
continuing collegial approach between the two tribunal mem
bers. The extent of the Refugee Division member's participa
tion should depend on the nature of the case and the issues
raised.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C., 1985, Appendix III.
Canadian Charter of Rights and Freedoms, 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], ss. 1, 15, 24(1),(2).
Constitution Act, 1982, 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. 18.
Immigration Act, 1976, S.C. 1976-77, c. 52.
Immigration Act, R.S.C., 1985, c. I-2, ss. 27(4) (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 4), 30(2) (as am.
idem (4th Supp.), c. 28, s. 9), 43(3) (as am. idem (4th
Supp.), c. 28, s. 14), 45 (as am. idem), 46(1) (as am.
idem).
Immigration Regulations, 1978, SOR/78-172, s. 39.3 (as
am. by SOR/89-38, s. 18).
CASES JUDICIALLY CONSIDERED
APPLIED:
Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253; (1987), 26 Admin. L.R. 295; 31 C.R.R. 244; 87
C.L.L.C. 14,053; 82 N.R. 341 (C.A.); Tétreault-Ga-
doury v. Canada (Canada Employment and Immigration
Commission), [1989] 2 F.C. 245; (1988), 53 D.L.R. (4th)
384;33 Admin. L.R. 244; 23 C.C.E.L. 103; 88 C.L.L.C.
14,050; 88 N.R. 6 (C.A.); Andrews v. Law Society of
British Columbia, [1989] 1 S.C.R. 143; (1989), 56
D.L.R. (4th) 1; [1989] 2 W.W.R. 289; 34 B.C.L.R. (2d)
273; 36 C.R.R. 193; 91 N.R. 255; R. v. Edwards Books
and Art Ltd., [1986] 2 S.C.R. 713; (1986), 35 D.L.R.
(4th) 1; 30 C.C.C. (3d) 385; 87 C.L.L.C. 14,001; 55 C.R.
(3d) 193; 28 C.R.R. 1; 71 N.R. 161; 19 O.A.C. 239;
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)
(1989), 70 O.R. (2d) 179; 35 O.A.C. 94 (C.A.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigra-
tion, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th)
422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1;
MacKay v. The Queen, [1980] 2 S.C.R. 370; (1980), 114
D.L.R. (3d) 393; [1980] 5 W.W.R. 385; 54 C.C.C. (2d)
129; 33 N.R. 1.
COUNSEL:
Paul F. Partridge for applicant.
Darryl W. Larson for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Legal Services Society of British Columbia,
Vancouver, for respondent.
The following are the reasons for order ren
dered in English by
JOYAL J.: The Minister of Employment and
Immigration (the Minister) applies for an order
pursuant to section 18 of the Federal Court Act
[R.S.C., 1985, c. F-7] to quash a decision made by
an adjudicator and an Immigration and Refugee
Board member (the tribunal) in the course of an
immigration inquiry under subsection 27(4) of the
Immigration Act, R.S.C., 1985, c. I-2, as amended
[by R.S.C., 1985 (3rd Supp.), c. 30, s. 4].
The immigration inquiry was in respect of the
respondent Lech Borowski, a Polish national who
had jumped ship in Vancouver on March 8, 1989
and had subsequently claimed refugee status. The
inquiry began on May 17, 1989 and when it
resumed on June 13, 1989, counsel from the Legal
Services Society of Vancouver appeared. Counsel's
stated reason was to challenge the constitutionality
of subsection 30(2) of the Immigration Act [as
am. by R.S.C., 1985 (4th Supp.), c. 28, s. 9]. This
is the section which, subject to regulations, pro
vides paid legal counsel to any person appearing
before an inquiry. In effect this provision applies,
however, only to so-called "port of entry" cases
and no parallel provision is found for what are
called "inland" claims.
In counsel's submission, the fact that the provi
sion applied to one and not the other type of
refugee claimant was discriminatory and in breach
of subsection 15(1) of 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.) [R.S.C., 1985, Appendix II,
No. 44] ] which guarantees to any individual
equality before and under the law and the right to
equal protection and equal benefit of the law
without discrimination. According to counsel,
there` is no justifiable reason why an inland appli
cant should not have the benefit of paid counsel
when otherwise a port of entry applicant may have
one provided for him.
At a later date, full argument was heard before
the two-member tribunal and finally, on August
16, 1989, the adjudicator, in very considered rea
sons, agreed with counsel's submission. She ruled
that the impugned legislation was of no force and
effect, that its limitation to port of entry cases was
discriminatory and, as a result, by deleting certain
restrictive words in the legislation, she was in a
position in the case before her to appoint paid
counsel on behalf of the respondent.
Her colleague, the Immigration and Refugee
Board member [hereinafter referred to as the
"Refugee Division member"], concurred in this
and, in turn, provided the inquiry with comple
menting reasons for his decision.
THE ISSUES:
These two concurrent decisions raise three main
issues and two subsidiary ones. I should summa
rize them as follows:
1. Is the tribunal competent to declare a particu
lar enactment as being in breach of the provisions
of the Charter?
2. Is the tribunal correct in its interpretation of
the impugned legislation and in declaring that it
contravened section 15 of the Charter?
3. Is the impugned legislation otherwise protected
by the limitation found in section 1 of the
Charter?
4. As a subsidiary issue, was the specific relief
provided by the tribunal to the respondent within
the competence and jurisdiction of the tribunal?
5. As a further subsidiary issue, what are the
limits, if any, to the jurisdiction of the Refugee
Division member when dealing with her than eligi
bility and credibility in the course of an immigra
tion inquiry.
Issue No. 1: The competence of the tribunal to
deal with a Charter issue
I should deal with this very briefly. Any tribunal
vested with statutory powers has a duty to uphold
the law. Jurisprudence as in Zwarich v. Canada
(Attorney General), [1987] 3 F.C. 253 (C.A.); and
in Tétreault-Gadoury v. Canada (Canada
Employment and Immigration Commission),
[1989] 2 F.C. 245 (C.A.), has now established that
although declarations as to the constitutional
validity of any statute or regulation, as well as the
granting of any remedy pursuant to section 24 of
the Charter, are reserved to superior courts, any
tribunal, in the application of any enactment
within its jurisdictional competence, is duty bound
to respect the provisions of 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]] which declares that any law inconsist
ent with the provisions of the Constitution is to the
extent of the inconsistency, of no force or effect.
An argument could be advanced that the deci
sion of the tribunal in applying subsection 52(1)
does not touch upon its statutory jurisdiction and
that it was dealing with a collateral issue. In other
words, the question as to whether or not an inland
claimant is entitled to paid legal services is none of
the tribunal's business.
On the other hand, section 45 of the statute [as
am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14]
clothes the adjudicator with the authority to
appoint counsel when dealing with port of entry
cases. He or she could very well, in the circum
stances, look into the constitutionality of the
impugned legislation and in accordance with sub
section 52(1) of the Constitution Act, 1982, find
that it is of no force or effect. What remedy such
an authority can bring forward, however, is
another matter altogether. One can imagine many
situations when notwithstanding a tribunal's
competency or duty to uphold the Constitution of
Canada, or to declare that a particular statutory
provision is of no force and effect, it cannot, by the
very nature of its decision, provide remedial action.
Such remedial action, as I read the jurisprudence,
would be left to a "court of competent jurisdic
tion" under section 24 of the Charter.
For the moment, I should not deal with the
remedy issue and leave it for consideration later
on.
Issue No. 2: Is the impugned legislation in breach
of section 15 of the Charter?
I have read very carefully the well-structured
reasons for decision by the two members of the
tribunal. Both concluded that the absence of any
provisions for paid counsel at an inland inquiry
was discriminatory and in breach of section 15 of
the Charter. I note, however, in some passages of
the adjudicator's decision, that the tribunal did not
have before it any evidence as to the purpose of
such differentiation. The adjudicator specifically
stated at page 9 of her decision (page 59 of the
applicant's record):
There was no evidence presented to us to indicate how the
provision of designated counsel supports those purposes for the
amendments and I don't feel that section 1 can therefore save
the discriminatory provisions of the legislation.
Issue No. 3: Is the impugned legislation otherwise
protected by the limitation found in section 1 of
the Charter?
For reasons which will appear later, I should not
be required to review in depth the conclusions
reached by the tribunal that the impugned provi
sion is in breach of section 15. Assuming, however,
that it is, I should conclude on the basis of the
evidence made available to me in the course of
three days of hearing, that the statutory provision
in question is protected by the limitation clause of
section 1 of the Charter.
I should first of all observe that the Court is not
dealing here with the principle of the right to
counsel. Such a right is now recognized as sacred
in dealing with immigration inquiries. Nor is the
Court facing an issue of a right to paid counsel
available to anyone who faces any kind of immi
gration inquiry. What is before me is a detailed
provision, subject to regulation, under which in
certain prescribed circumstances, an adjudicator is
authorized to appoint counsel on behalf of a claim
ant and have such counsel paid out of public funds.
For what purpose was this provision made?
What was the intent of Parliament? Why is it only
applicable to port of entry claimants? What is the
rationale behind all this?
To find some answers to these questions, the
Court may refer to the lengthy affidavit of one
John Butt sworn on September 26, 1989 and filed
in the proceedings. What the affidavit tells us,
with statistical tables in support, is that historical
ly, Canada's refugee determination process has
been in a gridlock situation. Thousands of refugee
claimants have arrived in Canada over the past
several years. In the decade between 1978 and
1988, immigration inquiries opened during a
month increased from 706 to 2,146. When origi
nally, only 12% of the inquiries had to be
adjourned under , the old system because of a
refugee claim, that percentage had increased to
89% at the end of 1988. The refugee backlog
during that decade had increased from 854 to over
50,000. If the feed of refugee claims were to
continue, the processing of these claims, on the
basis of statistical intrapolation, would involve
delays running to some three years for those claim
ing in 1984-1985 and would require fourteen years
for those in 1987-1988.
The scale of the problem reached such a magni
tude that in 1986, special regulations were adopted
to provide a quick fix for outstanding refugee
claims. No longer were refugee claimants to be
judged on the merits of their refugee status but on
their actual or potential ability to become estab
lished in Canada. Thousands were cleared on those
grounds, the delays in dealing with their claims
having permitted many of them to integrate in the
community and to become self-supporting and
self-reliant.
A properly functioning system, however, could
not afford to solve the administrative morass in
that fashion on a continuing basis. It would have
been incongruous to perpetuate a quick fix system
to thousands of claimants when other applicants
were often kept waiting for months and years for
their permanent visas to be processed. To some
observers, it was made to appear that Canada was
becoming the international patsy for thousands of
people who, wishing to escape the economic con
straints of their country of origin, found that an
airline or boat ticket to Canada was all that was
required to provide them, effectively, with perma
nent residency in Canada.
I also take judicial notice that Canada's policies
with respect -to immigration generally and to
refugee claims in particular has been among the
most enlightened in the world. Very little scope
was left to executive discretion, as is the situation
in many countries who nevertheless subscribe to
the United Nations Convention on Refugees. A
systematic process of inquiry, with right to coun
sel, was instituted. A redetermination process was
established through an Immigration Appeal Board
and unsuccessful claimants could still avail them
selves of review or appeal procedures. The whole
philosophy, in my mind, was based on the basic
values of humanity and on the need to ensure that
the processes at all levels met the basic principles
of fairness, natural justice and administrative
propriety.
With respect to the protection afforded to all
individuals coming into Canada, Singh et al. v.
Minister. of Employment and Immigration, [1985]
1 S.C.R. 177, put it beyond any further social or
academic discussion that any person physically
present in Canada was entitled to the whole
panoply of rights and freedoms available under the
Canadian Charter of Rights and Freedoms.
If, it should have been the policy of Parliament
and the doctrine of our courts to extend in this
fashion Canadian Charter rights and freedoms, the
sheer scale of refugee claims was bound to create
the kind of administrative immobility which I have
described.
Parliament was invited to find some statutory
and regulatory solution to this situation. Parlia
ment feared that its clear intent, as expressed in
the Immigration Act, 1976 [S.C. 1976-77, c. 52],
had become submerged or thwarted by the
administrative morass which had been created.
Parliament's available options in this respect were
severely constrained. Parliament had to find a
formula which would accelerate the disposition of
refugee claims while at the same time safeguard
ing the rights, freedoms and privileges of claim
ants, which jurisprudence had bestowed on them
and which, of course, guaranteed the right to
counsel and a full hearing. To fail in this attempt
would provoke an ever-increasing downward spiral
in the proper functioning of immigration and
refugee programs and bring the whole of Parlia
ment's policies into universal disrespect.
I need not elaborate on the several measures
which Parliament, in its wisdom, decided to adopt.
I need only refer to the evidence before me that
the integrated right to counsel, created not only
unnecessary, but artificial delays in the expeditious
disposition of cases. Furthermore, an analysis of
the whole situation indicated to Parliament that by
the sheer weight of numbers, the incidence of
delays had far greater impact on port of entry
claimants than on inland claimants.
The solution provided by Parliament was a prag
matic one. This solution might, in the eyes of some
purists, fall short of the ideal, or, as is the case
before me, create a semblance of discrimination or
inequality. What Parliament decided was that as
one of the many systematic changes in the process,
those claimants at ports of entry who wished to
retain counsel but whose chosen counsel were una
vailable within a reasonable delay, would, at the
discretion of the adjudicator, and in prescribed
terms, have duty counsel available for them at
public expense.
Parliament adopted this formula with the firm
purpose and intention of accelerating the flow of
refugee claims while, at the same time, respecting
the inherent civil rights of the claimants. Parlia
ment was of the opinion that this formula,
although adding to its financial commitments,
would not be prejudicial to other claimants subject
to the inland procedure.
Is this formula the kind that enjoys the protec
tion of section 1 of the Charter? Assuming, as I
have already postulated, that there is apparent
discrimination under section 15, I should conclude
that it is, in all the circumstances which I have
described, a reasonable and justifiable limit to
rights and freedoms inscribed in the Charter.
There can be no doubt that the element of
national interest must be preserved in the legisla
tion adopted by Parliament. Parliament concluded
that a claimant's right to counsel, which deserved
continuing respect, nevertheless created undue or
unconscionable delays in the refugee determina
tion process. Even if one were to be purposefully
indulgent of the case load which the immigration
bar appeared to be carrying, the evidence was
there. Accordingly, the legislative enactment
adopted was premised on the following:
(1) Using the 1987-1988 experience as a base,
89% of immigration inquiries in 1987-1988
involve refugee claims.
(2) Most refugee claims are port of entry
claims.
(3) If the legislation was to contemplate an
accelerated inquiry process and at the same time
respect the more fundamental right to counsel,
delays as .to counsel availability for the schedul
ing of hearings had to be faced head-on and
some pragmatic formula adopted.
The scheme of the formula is quite circum
scribed. There is no unqualified provision to pro
vide port of entry claimants with paid counsel. It is
only when the claimant has not waived his right to
counsel, has retained the services of counsel and
the latter's case load is too heavy and, in the
discretion of the adjudicator, it would cause undue
delay in scheduling a hearing, then, and only then,
does the legislation trigger off a system of public-
ly-assisted legal services.
Whether or not one agrees that, among all the
procedures adopted in the new statute to create
some order out of chaos, or to bring back some
measure of public control over obvious deficiencies
in the processing of claims, the impugned provision
was Parliament's only solution, is not for me to
decide. Second guessing will always be one of the
attributes of a free and democratic society. Never
theless, Parliament's general authority to legislate
for the common good and to adopt some discrete
measure or other to meet critical problems and
restore the statute's credibility is, in my respectful
view, deserving of presumptive respect.
Respondent's counsel provided the Court with
rebuttal evidence contained in the affidavit of Mr.
Philip Rankin, a well-known barrister and solicitor
in Vancouver, who has practised as immigration
counsel since 1979. The gist of Mr. Rankin's evi
dence was to raise doubts as to whether availabili
ty of counsel at inquiries was any real cause of
delays and the resulting backlogs. It became clear
on his cross-examination, however, that Mr.
Rankin, for all of his experience and knowledge,
could only testify as to his own perception of
various immigration problems and repeat various
opinions expressed by others. In his defence, I
should of course mention that he did not have in
support the mass of information and statistical
analysis available to the Crown.
I should nevertheless conclude that Mr. Ran-
kin's evidence was not sufficient to rebut the
Crown's case or undermine its foundation.
I should also refer to another element in the case
which was ably argued by counsel and which
questions whether or not it can be said that a port
of entry claimant is in the same position as an
inland claimant. Admittedly, a debate on that
issue raises again the question as to whether or not
the impugned legislation is discriminatory under
section 15 of the Charter, an issue which, for
purposes of this case, I have already set aside. I
should nevertheless set out my thinking on it as it
does touch upon the element of "demonstrably
justified" as found in section 1 of the Charter as
well as on the proportionality doctrine as expressed
by the courts.
It is true that both inland claimants and port of
entry claimants would appear to be in the same
position. They are both subject to the same statute
and to identical processes. In most cases, however,
the inland claimant has been residing in Canada
for some time and has become acclimatized to the
country's social, economic and political institu
tions. It can therefore be expected that by the time
his inquiry takes place, he has become more
knowledgeable in the requirements of the statute
and in the availability of publicly-funded legal
services.
Not so the port of entry claimant. One must
presume that such a claimant, usually unfamiliar
with the language and whose fear of public author
ity might be firmly grounded on his experience in
his country of origin, might be said to be entitled
to a greater degree of protection or assistance. In
that sense, he is in greater jeopardy than an inland
claimant. In that sense he might be said to be in
greater need of counsel. If, on the other hand, the
unavailability of counsel of one's choice and the
resulting adjournments before an inquiry may be
heard are of a nature to defeat Parliament's pur
pose and perpetuate the administrative clutter the
legislation is meant to overcome, what were Parlia
ment's options? Expressed in different terms, is the
formula incorporated in the statute of a nature to
enjoy the protection given under section 1 of the
Charter?
In MacKay v. The Queen, [1980] 2 S.C.R. 370,
when dealing with equality under the Canadian
Bill of Rights [R.S.C., 1985, Appendix III], the
Supreme Court of Canada imposed a test to distin
guish between justified and unjustified legislative
distinctions within the concept of equality before
the law itself, absent any exemption under what is
now section 1 of the Charter. The test, said the
Court, is whether or not such a departure is for
purposes of achieving some desirable or necessary
social objective.
In Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, McIntyre J. sets out, at page
184, the necessary investigative steps to be fol
lowed whenever a section 1 defence is set up. First,
he says, the importance of the objective underlying
the impugned law must be assessed, and he dis
counts in so doing the elements of "pressing and
substantial" as necessary characteristics. Next,
continues McIntyre J., there is involved the pro
portionality test whereby the Court must balance a
number of factors. As he says, the Court must
examine the nature of the right, the extent of its
infringement and the degree to which the limita
tion furthers the attainment of the desirable goal
embodied in the legislation. And McIntyre J. con
cludes at page 185:
There is no single test under section 1; rather, the Court must
carefully engage in the balancing of many factors in determin
ing whether an infringement is reasonable and demonstrably
justified.
In the case before me, I have already outlined
the administrative exigencies and strictures
imposed on the Canadian refugee determination
process by reason of both legislative and judicial
respect for individual rights, for rights of judicial
review, for administrative fairness and propriety
and needless to say, for the right inherent in the
whole process, namely, a claimant's right to coun
sel. Parliament found that one of the reasons the
system was not working properly was the delays
caused by the unavailability of counsel. It also
found that these delays had more impact on port
of entry claims through the simple fact that sub
stantially more claims are processed at that level.
Was it open to Parliament to deny the right to
counsel in order to eliminate delays? Was it open
to Parliament to pay for the services of counsel of
one's choice, whether available or not? Was it
open to Parliament to unilaterally impose on a
claimant the services of counsel attached to the
Canada Employment and Immigration Commis
sion or chosen from a list of paid duty counsel?
I am sure that Parliament toyed with many of
these options and in my view, it was Parliament's
right to pick one of them. La Forest J. in R. v.
Edwards Books and Art Ltd., [ 1986] 2 S.C.R.
713, at page 795, says this:
In seeking to achieve a goal that is demonstrably justified in
a free and democratic society, therefore, a legislature must be
given reasonable room to manoeuvre to meet these conflicting
pressures.
In my view, the provision for publicly paid
counsel under the circumstances prescribed, repre
sents to port of entry claimants a minimal benefit
to them. It is the pragmatic quid pro quo for
imposing on them, in the circumstances prescribed,
a counsel who is not of their own choosing. I would
suggest that if the benefit to port of entry claim
ants is minimal, the unequal treatment for inland
claimants could also be said to be minimal, an
equation which, although not directly explored in
the Andrews case (supra), appears to me to be
part and parcel of the "balancing of many factors"
which McIntyre J. suggests.
I have also previously summarized the magni
tude of the administrative problem facing Parlia
ment in the face of the ever-increasing refugee
claims backlog. To any reasonable observer, it
would be evident that the whole credibility of
Canada's immigration policies and rules was
becoming seriously impaired and that not one, but
several remedies had to be brought to bear. This
Court is, of course, not aware of the several
choices available to Parliament in the broad spec
trum of the Immigration Act and of its Regula
tions [Immigration Regulations, 1978, SOR/78-
172]. It might be argued that a solution other than
that of prescribed paid counsel for port of entry
claimants could have been found but this would be
mere speculation and conjecture. It was up to
Parliament, if its avowed purpose was to accelerate
the refugee claims determination process and at
the same time, respect the rights of all individuals
involved, to decide which formula would be most
amenable to that purpose.
I should therefore conclude that, while assuming
for purposes of this case that the impugned legisla
tion is in breach of section 15 of the Charter, it
enjoys continuing legitimacy under section 1 of the
Charter.
Issue No. 4: Was the specific relief provided to the
respondent by the tribunal within the latter's
competence and jurisdiction?
By reason of my disposition of the two previous
issues, I should not deal at length on the scope of
any remedy which subsection 52(1) might make
available to an administrative tribunal. I would
only observe that subsection 52(1) simply declares
that if inconsistency with a constitutional provision
is found to exist, a law, to the extent of the
inconsistency, is of no force or effect. The section
says no more than that. It does not fashion a
remedy. A tribunal may be empowered to disre
gard the inconsistent law but as I interpret current
doctrine, it cannot provide a remedy pursuant to
subsection 24(1) of the Charter. Such a role is
reserved to courts of competent jurisdiction. There
might be in certain circumstances a form of
remedy which is not in fact the kind of remedy
under subsection 24(2) but which, by the nature of
the impugned legislation as well as by the constitu
ent powers and attributes conferred on a tribunal
by statute, immediate relief may be provided.
In my view, this circumstance is not present in
the case before me. If the tribunal's purpose was to
provide a section 24 remedy, it lacked the jurisdic
tion to do so. All the more is the tribunal preclud
ed from fashioning a remedy when the remedy is
in the nature of a legislative amendment. Such a
role is properly left to Parliament.
Issue No. 5: What are the limits, if any, to the
jurisdiction of the Refugee Division member when
dealing with matters other than eligibility and
credibility in the course of an immigration
inquiry?
Two opposite arguments have been advanced on
this issue. One argument is to the effect that a
Refugee Division member enjoys very limited
jurisdiction in such an inquiry. The Refugee Divi
sion member, it is said, is only called upon to join a
two-person tribunal when a refugee claim has been
made. Any other immigration inquiry is under the
exclusive jurisdiction of a single adjudicator. It is
also . suggested that the adjudicator, pursuant to
subsection 46(1) of the statute [as am. by R.S.C.,
1985 (4th Supp.), c. 28, s. 14], presides at the
inquiry and has the ultimate decision-making
power in all areas of the inquiry except as to
eligibility and credibility issues. Outside that field
of investigation, the Refugee Division member is
functus.
The other side of the coin suggests that upon a
true construction of the statute, the Refugee Divi
sion member is entitled to participate at all stages
of the inquiry. Subsection 43(3) of the Act [as am.
by R.S.C., 1985 (4th Supp.), c. 28, s. 14] specifi
cally states that if a refugee claim is made, and a
Refugee Division member is not present, the inqui
ry is to be adjourned and "shall be continued
thereafter only in the presence of both the
adjudicator and the member. (My emphasis). This
indicates that the intention of Parliament, in creat
ing a two-person tribunal, is to have both of them
participate in the inquiry. It would otherwise be
silly of Parliament to so provide simply to enable
the Refugee Division member to enjoy stand-by
time except on the issue of eligibility and
credibility.
Furthermore, so the argument goes, the pres
ence and participation of both members of the
tribunal, at any or all stages of the inquiry,
involves continuing but ever-shifting elements of
the credibility of the refugee claimant, a factor
which may often be either confirmed or destabil-
ized on the basis of the evidence adduced through
out the inquiry.
I will concede that a proper determination of the
role of the Refugee Division member is not with
out difficulty. Sound argument, in terms of statu
tory dispositions and perceived legislative intent,
may be made on both sides. I will also admit that
the statute does circumvent the Refugee Division
member's role in the determination processes
which would lead one to conclude that apart from
the refugee claim issue, he or she is effectively
bereft of any jurisdiction or authority and the rest
of the inquiry remains exclusively in the hands of
the adjudicator.
On balance, however, I should conclude that the
continuing presence and participation of that
member throughout the inquiry is sanctioned. My
conclusion is essentially based on the distinction
which might be made between the power or au
thority to hear and the power and authority to
both hear and decide. This distinction is forcibly
imposed by the problems inherent to any two-per
son tribunal when decisions must be made. It is
certain that Parliament, in striving for an
accelerated procedure to deal with refugee claims,
did not do so with the intention of ending up with
hung juries. Parliament, as I interpret the relevant
statutory provisions, had to find a pragmatic for
mula to resolve any impasse the system might
create. It was therefore decreed that, in the course
of an inquiry before a two-person tribunal:
1. The adjudicator would preside at the inquiry.
2. The adjudicator would decide on immigra
tion issues generally as well as on the depart/
deport process.
3. Both the adjudicator and the Refugee Divi
sion member would have equal voice on the
eligibility and credibility issue.
4. To assure fairness in what is effectively a
threshold issue for refugee claimants, one affir
mative vote for a refugee claimant would be
weighed in his favour.
I observe at this stage how fruitless it is, in
dealing with such a tribunal, to articulate a series
of abstract rules of law which would anticipate and
regulate once and for all the myriad procedures
and incidences that arise in the course of such
inquiries. Questions or answers might be ruled
inadmissible, relevancy is questioned, objections
are taken, ruled or reserved. Human rights, human
security and the respect of the public for interna
tional commitments, all are values which are freely
and generously expressed and which underlie the
statute. Yet, one must not overlook the essentially
individual approach to refugee claims. As far as
the tribunal is concerned, that's where the buck
stops. Some claimants, as was pointed out by the
adjudicator, are in genuine . need of protection,
others might appear to advance abusive claims.
The judgment call on some may be relatively easy.
Other cases would be more borderline when a
decision, one way or other, is not so easily made.
In that atmosphere, would it have been Parlia
ment's intention to create procrustean beds of
finite dimensions, to establish firm and exclusive
categories and to obliterate completely the natural
dynamics which ordinarily govern an inquiry? Did
Parliament intend that such an inquiry be conduct
ed with a scenario in which specific lines in the
script are assigned to each individual actor?
The answer is, in my respectful view, self evi
dent. The staging of various issues before the
inquiry are procedural only. The total of the evi
dence, however, is through one inquiry, in which
both the adjudicator and the Refugee Division
member are present and to which both will, of
necessity, participate. In some issues, of course,
the adjudicator's role or intervention might be
predominant and only his decision will prevail.
Yet, even in hearing or considering the evidence as
to those issues, both members must come to terms
with the credibility issue. They must assess the
claimant's demeanour, the manner as well as the
substance of his plea, the directness or evasiveness
of his replies, all of which influence, in a subjective
as well as more objective manner, the ultimate
decision or judgment call which each will have to
make.
Could it be argued that a finding on credibility
be limited to that part of the evidence at the
inquiry dealing exclusively with refugee status?
Would not the adjudicator, who must himself
make a finding on credibility, have an edge on his
colleague? Would there not be an issue of fact of
particular concern to the Refugee Division
member and which he would be denied the right to
explore? To bifurcate the role of the Refugee
Division member in this manner would tend to
defeat the purpose of the new procedure.
If the actual decision-making role of that
member is more limited, I should nevertheless
think that throughout the course of the inquiry,
the adjudicator needs all the help he can get. The
procedure is avowedly one to expedite the determi
nation of refugee claims at the first level, and
unless the adjudicator is gifted with an untoward
degree of divine knowledge and wisdom, or unless
his colleague is completely deprived of any of these
attributes, I should suggest that a continuing col-
legial approach by way of one's contribution to the
other would, in normal circumstances, advance the
purpose which Parliament intended.
As presiding officer, there is no problem facing
the adjudicator in deciding whether or not at any
stage in the proceedings in which a decision is
exclusively his to make, the participation of his
colleague should be limited or restricted. Heaven
knows that the cogency or relevancy of any inter
vention is a search for truth in the eye of one and a
waste of time in the eye of the other. Such short
comings or experiences, however, should in no way
undermine the role each member of the tribunal is
called upon to perform. And if unresolvable per
sonality conflicts develop between them, there is
no reason why they should continue to sit on the
same panel.
I should also find in Parliament's decision to
have the adjudicator preside at the inquiry, that
such appointment would confer upon him the bind
ing authority to decide on all matters of procedure.
It would be vexatious indeed to have an inquiry
grind to a halt at any stage of it if conflicting
rulings were made.
I have great respect for the approach of counsel
who would favour a clear-cut separation of func
tions. It flatters the orderly and logical mind of
every jurist who is professionally trained to define
black and white positions and leave no room for
the grey. Care must be taken, however, not to
extend this discipline too far. It gives too much
immunity to abstractions and imposes a mechanis
tic and constricted procedure conducive to creating
even more grounds for jurisdictional errors provok
ing new fields for judicial review. To admit to such
a result would certainly go against the grain of the
statute.
In essence, I see no reason why a Refugee
Division member cannot or should not participate
at any of the several so-called stages of the inqui
ry. The extent of that participation will depend on
the nature of the case and the various issues which
might be raised. The Refugee Division member
would not, by reason of the exclusive authority
conferred on the adjudicator, have the competence
to submit either concurrent or dissenting decisions
in matters other than the eligibility or credibility
issue. A sense of propriety, in my view, would
always govern the conduct of the Refugee Division
member whenever he should personally disagree
with an adjudicator's decision.
To conclude that a Refugee Division member
has the jurisdiction to participate but not to decide
except on the eligibility and credibility issue,
might raise some eyebrows in academic circles.
Some might argue that the two concepts are com
plementary and that otherwise we face a contra
diction in terms. My view on that, however, is that
Parliament has adopted a sui generis approach to
remedy what has already become a critical prob
lem. The artful or ingenious method used might or
might not bear the test of experience. In the
meantime, however, it is my view that one should
adopt a more eclectic as against a more doctrinal
approach to Parliament's formula.
CONCLUSIONS
I should now sum up the conclusions I have
reached with respect to the various issues submit
ted to the Court.
1. It is my view that the immigration inquiry
tribunal in question possesses the required compe
tence to apply subsection 52(1) of the Constitution
Act, 1982, in order to determine the constitutional
ity of any law which it has the statutory duty to
apply and which is properly before it. Its decision
to that effect is not in the nature of a declaratory
judgment and of course no curial deference is
owed to it. I would subscribe in this respect to the
majority decision of the Ontario Court of Appeal
in the Cuddy Chicks Ltd. v. Ontario (Labour
Relations Board) (1989), 70 O.R. (2d) 179 (C.A.)
which is not inconsistent with the Tétreault-Ga-
doury case, supra decided by the Federal Court of
Appeal.
2. Subsection 52(1) of the Constitution Act, 1982,
however, simply declares that if inconsistency with
a constitutional provision is found to exist, a law,
to the extent of the inconsistency, is of no force or
effect. A tribunal can only disregard the "incon-
sistent" law but it cannot fashion a remedy pursu
ant to subsection 24(1) of the Charter. That is a
role reserved to courts of competent jurisdiction.
3. A tribunal is all the more so precluded from
fashioning such a remedy when the remedy is in
the nature of a legislative amendment, a role prop
erly left to Parliament.
4. Even if it should be conceded that on the facts
before it, the tribunal did not err in law in finding
that a portion of the language used in subsection
39.3 of the Regulations [as am. by SOR/89-38, s.
18] was in breach of section 15 of the Charter, I
find that the provision is otherwise justified under
section 1 of the Charter.
5. I should finally conclude that the Refugee Divi
sion member, obliged by statute to be present
during the whole inquiry, is also entitled to partici
pate in it, but evidently not competent to decide on
any matter save the eligibility and credibility issue.
The extent of such member's participation I leave
to the dynamics of any particular case.
I would invite the parties to submit for approval
a draft of a formal order for my consideration and
signature and which will incorporate the foregoing
decisions.
This is not a matter for 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.