90-T-823
Robert Blackwood (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
and
Toronto Sun Publishing Corporation (Intervenor)
INDEXED AS: BLACKWOOD V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Jerome A.C.J.—Toronto, January
8; Ottawa, May 7, 1991.
Immigration — Practice — Application for certiorari to
quash Immigration and Refugee Board's decision to hold
refugee status hearing in public under Immigration Act, s.
69(2) and for mandamus to reconsider issue of public hearing
in accordance with law — Whether test of serious possibility
of harm unreasonable — Applicant found to have credible
basis for refugee claim — Proceedings to be conducted in
camera unless claimant or member of public requests other
wise — Onus of proof for exclusion of press upon refugee
claimant — No persuasive evidence or argument offered by
claimant as to serious possibility of harm if inquiry in public.
Constitutional law — Charter of Rights — Life, liberty and
security — Applicant fearing reprisals if testimony at refugee
hearing made public — Whether Board having correctly
balanced applicant's Charter s. 7 rights against right to free
dom of press — When right of access asserted, burden shifting
to one seeking to exclude press — Burden of showing serious
possibility of harm to him or family not met.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of press — Application by publisher to
have refugee hearing conducted in public pursuant to Immi
gration Act, s. 69(2) — When right of access asserted, onus
shifting to one seeking to exclude press — Refugee claimant
unable to meet burden of showing serious possibility of harm
to him or family if hearing held public — Freedom of press
not to be impaired in judicial or quasi-judicial proceeding
without evidentiary basis.
This was an application for a writ of certiorari to quash the
Immigration and Refugee Board's decision to hear the appli
cant's refugee claim in public pursuant to subsection 69(2) of
the Immigration Act and for a writ of mandamus directing
Board members to reconsider this issue in accordance with the
law. The applicant is a citizen of Jamaica who claimed to be a
Convention refugee in Canada. After it was found that he had
a credible basis for his claim, he held a press conference at
which he stated that he feared attempts upon his life as a result
of evidence he would give at his refugee hearing. Subsequently,
two Toronto newspapers made an application before the Immi
gration and Refugee Board to have the hearing conducted in
public. Applicant told the Board that at this refugee hearing he
would be naming high level Jamaican police and politicians and
also that the publicity could adversely affect his career as a
musician. Having found that the claimant had failed to provide
details supporting his fear of reprisals, the Board allowed the
application for a public hearing, saying that the applicant had
not met the burden of showing a serious possibility that he or
his family could be harmed as a result of a public hearing.
The issue before the Court was whether the Board erred in
deciding to hold a public hearing and in requiring the applicant
to meet a test of "serious possibility" that he or his family could
suffer harm if the hearing were held in public. The applicant
submitted that the Board erred in law by requiring him to meet
such test and that he could have satisfied a less onerous test by
offering some credible and trustworthy evidence relating to the
issues of "impediment" of the hearing and "adversely affect
ed". He also argued that the Board erred in failing to balance
the respective Charter freedoms of the applicant and the press.
He suggested that the United Nations Handbook on Proce
dures and Criteria for Determining Refugee Status assumes
that the refugee determination process will be everywhere
conducted in camera. The applicant also argued that while the
Charter rights of the press are important in a democratic
society, they are not absolute and must be balanced against the
unique rights of a claimant in a refugee hearing, particularly
the section 7 Charter rights to life, liberty and security of the
person. His submission was that the Board erred in failing to
balance these interests. Applicant's final argument was that the
Board erred when it released its reasons to the press as that had
the effect of retroactively declaring the hearing open to the
public, the possibility of which had not been made known to
him.
The respondent submitted that the onus on a refugee claim
ant seeking to exclude the press from a hearing is to show that
on the balance of probabilities, harm could come to him or his
family as a result of the disclosure of certain facts. The test of a
"serious possibility" imposed by the Board was, in fact, a lesser
burden of proof. The intervenor argued that the applicant had
to rely on a balance of probabilities in order to establish a
violation of a section 7 Charter right, pointing out that a
burden less onerous than that applied by the Board would
effectively negate the media's constitutionally-guaranteed right
of access to judicial and quasi-judicial proceedings. The Board
had balanced the competing Charter rights and the media's
right of access was found to outweigh the applicant's right to an
in camera hearing.
Held, the application should be dismissed.
A review of the legislative history of subsection 29(3) of the
Immigration Act (which is similar to the provision at issue
here) made by Martin J. in Toronto Star Newspapers Ltd. v.
Kenney indicated that both the principle and the practice of
allowing a Convention refugee claimant the benefit of in
camera proceedings have been part of immigration law for
some time. The determination of Martin J. that subsection
29(3) was constitutionally sound was, however, rejected by
MacGuigan J.A. in Pacific Press Ltd. v. Canada (Minister of
Employment and Immigration) (McVey No.2) who concluded
that the purpose of subsection 29(3) was to infringe the free
dom of the press as set out in Charter, paragraph 2(b). The
question whether subsection 69(2) is constitutionally sound was
not here under attack. The decisions in Toronto Star, Pacific
Press Ltd. v. Canada (Minister of Employment and Immigra
tion) (McVey No. I) and now McVey No. 2 nevertheless
established that freedom of the press cannot be impaired in a
judicial or quasi-judicial proceeding without an evidentiary
basis and that once the paragraph 2(b) right of access is
asserted, the onus shifts to the person seeking to exclude the
press.
The Board must afford a refugee claimant an in camera
hearing unless the claimant or a member of the public requests
otherwise. The Board having complied with that obligation, the
procedure followed was unassailable. Considering subsection
69(2) in positive terms and in the context of this case, the
Board could open the hearing if it concluded that to do so
would not adversely affect the claimant or his family. This was
precisely what it did. The Board did not err in law in formulat
ing or applying the test. Applicant's submission, that the word
"serious" provides justification for setting the decision aside,
was untenable. A fair interpretation of the Board's decision was
that applicant had not put forward evidence that was persuasive
in any way. That disposed of the submission that by publishing
its decision, the Board had failed in its duty of fairness or
obligation of confidentiality to the applicant. It had not been
shown that harm would befall the applicant as a result of
publication.
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.) [R.S.C., 1985, Appendix II,
No. 44], ss. 2(b), 7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 29(3) (as am.
by R.S.C., 1985 (1st Supp.), c. 31, s. 99), 46.01(6) (as
added by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 69(2)
(as am. idem, s. 18).
CASES JUDICIALLY CONSIDERED
APPLIED:
Toronto Star Newspapers Ltd. v. Kenney, [1990] 1 F.C.
425; (1990), 33 F.T.R. 194; 10 Imm. L.R. (2d) 22
(T.D.); Pacific Press Ltd. v. Canada (Minister of
Employment and Immigration), [ 1990] 1 F.C. 419;
(1990), 10 Imm. L.R. (2d) 42; 104 N.R. 228 (C.A.);
Pacific Press Ltd. v. Canada (Minister of Employment
and Immigration), [1991] 2 F.C. 327 (C.A.); Osei v.
Canada (Minister of Employment & Immigration)
(1990), 12 Imm. L.R. (2d) 49 (F.C.A.).
AUTHORS CITED
Office of the United Nations High Commissioner for
Refugees. Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Conven
tion and the 1967 Protocol relating to the Status of
Refugees, Geneva, January 1988.
COUNSEL:
Maureen N. Silcoff for applicant.
Claire Le Riche for respondent.
David A. Shiller for intervenor.
SOLICITORS:
Maureen N. Silcoff, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
Goodman & Goodman, Toronto, for interven-
or.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application came on for
hearing at Toronto, Ontario on January 8, 1991 at
which time I reserved my decision concerning the
following relief requested by the applicant in his
notice of motion dated November 29, 1990:
1. A writ of certiorari to quash the decision of the
Immigration and Refugee Board, Convention
Refugee Determination Division, made by
members E. Teitelbaum and H. Aulach, on
November 14, 1990, such decision having been
communicated to the applicant on November
14, 1990, to open the applicant's refugee hear
ing to the public pursuant to subsection 69(2)
of the Immigration Act [R.S.C., 1985, c. I-2
(as am. by R.S.C., 1985 (4th Supp.), c. 28, s.
18)].
2. A writ of mandamus directing Board members
E. Teitelbaum and H. Aulach to reconsider the
issue of a public hearing in accordance with the
law.
FACTS
The applicant, a citizen of Jamaica, is seeking
recognition as a Convention refugee in Canada. It
was initially determined that, pursuant to subsec
tion 46.01(6) of the Immigration Act [as added by
R.S.C., 1985 (4th Supp.), c. 28, s. 14], the appli
cant had a credible basis for his claim. Following
this decision, the applicant attended a press con
ference on March 23, 1990 wherein it was reported
inter alia that he feared people would try to kill
him as a result of evidence he would give at his
refugee hearing.
At the hearing before the Immigration and
Refugee Board, Convention Refugee Determina
tion Division (the "Board"), on October 18, 1990,
an application was made by the Toronto Sun
Publishing Corporation (the "intervenor") and the
Toronto Star pursuant to subsection 69(2) of the
Act to have the hearing conducted in public.
Counsel for the intervenor and the Toronto Star
gave undertakings that they would not disclose any
evidence during the hearing to their clients and
they were, therefore, present before the Board
when the application was considered.
The evidence presented with respect to the
application consisted of the testimony of the appli
cant and certain newspaper articles. The applicant
testified that he is the father of eleven children by
as many mothers, spread throughout Jamaica, the
United States and England. He asserted, despite
the mother's disclaimer of his paternity, that he
had a twelfth child in Canada. His father lives
"somewhere" in Jamaica, as do a sister and broth
er. He stated that during his refugee hearing he
would name high level Jamaican police and politi
cians and that he fears reprisals to him and his
family if this were made public. He would not,
however, give any names or other details during
the in camera proceeding to consider the applica
tion. The applicant also stated that he was a
musician by trade and that he believed that the
publicity could hurt his music career.
The Board found that, despite having been given
wide latitude in the claimant's examination and
despite several reminders that the claimant had a
responsibility to show why the press should not
have access to his hearing, the claimant's repre
sentative was unable to elicit specific details from
the applicant to support his alleged fear of reprisal
should he divulge certain information. The Board,
therefore, allowed the application for a public
hearing. It found that the applicant had not met
the burden of showing that there is a serious
possibility that harm could come to him or his
family as a result of a public hearing. The relevant
portions of the Board's decision, given by E. Tei-
telbaum and concurred in by H. Aulach, are as
follows:
I have carefully examined all the evidence and arguments and
conclude that in spite of the seriousness of his situation, Mr.
Blackwood still failed to discharge the burden placed upon him.
Mr. Blackwood claims that his and his family's lives would be
in danger were he to reveal publicly the information he has
about public figures in Jamaica.
Mr. Blackwood indicated that were the media to be present at
the hearing into his claim for refugee status, he would feel
restrained and unable to disclose names and other details. This
may be so, but to enable this panel to determine that this
limitation exists, a claimant is obliged to give some clearer
indication of the specific nature of the areas he or she would be
talking about, rather than the generalities Mr. Blackwood
offered. Merely requesting an in camera hearing is not suffi
cient to ensure that a claimant will have one.
In short, Mr. Blackwood alleged that threats were made
against him and his family by Jamaican authorities, specifically
politicians and police, as a result of the application in Jamaica
of certain facts regarding his claim to refugee status. Notwith
standing assurance of complete confidentiality at his hearing of
this application, Mr. Blackwood failed to disclose sufficient
information upon which the panel could favourably consider his
refusal to allow the press access to his hearing into his claim.
Mr. Blackwood was urged to focus on the issue of how his
ability to disclose facts would be diminished by the presence of
the press. Seven months have elapsed since he held a press
conference. Public disclosure of certain facts has clearly not
precipitated the repercussions he asserts would ensue from
press reports of his hearing into his claim.
For a claim to be accepted it is not necessary for the claimant
to demonstrate that he or she already has or in the future,
would, suffer persecution. A variety of factors could conceiv
ably lead to a finding that a serious possibility of persecution
exists. Similarly, where a claimant attempts to bar the media
from a hearing he or she has only to show that there is a serious
possibility that, as a result of disclosure of certain facts, harm
could come to him or his family. While the Refugee Division
sympathizes with Mr. Blackwood's desire for privacy, he failed
to provide sufficient reasons to override the public's right to
attend. [Emphasis added.]
ISSUE
The issue before this Court is whether the Board
made a reviewable error in deciding, pursuant to
subsection 69(2) of the Immigration Act, to hold
the applicant's hearing in public.
ARGUMENT
The applicant submits that this application
raises questions concerning the proper burden of
proof to be placed upon the applicant to maintain
the hearing in camera and the Board's responsibili
ty to balance the respective 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.) [R.S.C., 1985,
Appendix II, No. 44] ] rights of the press and the
applicant. The applicant submits that the Board
erred in law by requiring the applicant to meet a
test of "serious possibility" that he or his family
could suffer harm if the hearing were made public.
It is contended that the proper test is less onerous
and that the lower threshold is satisfied by the
applicant offering some credible and trustworthy
evidence relating to the issues of "impediment" of
the hearing and "adversely affected". As the appli
cant did offer some evidence that was not rejected
by the Board as lacking credibility or trustworthi
ness, he submits that the Board erred in failing to
find that he met the burden placed upon him.
In addition, the applicant submits that the
Board erred in failing to balance the respective
Charter freedoms of the applicant and the press.
He notes that section 3 of the Immigration Act
requires that it be interpreted in the light of the
Charter and in recognition of Canada's interna
tional legal obligations. The applicant suggests
that the Office of the United Nations High Com
missioner for Refugees (UNHCR) Handbook on
Procedures and Criteria for Determining Refugee
Status, Geneva, January 1988, paragraph 200,
assumes that the refugee determination process of
each state will be conducted in camera. The appli
cant also submits that a refugee determination
hearing is a unique quasi-judicial or judicial pro
ceeding in that, according to subsection 69(2),
there is a right to an in camera hearing. This is
because the claimant must be ensured an air of
confidentiality when testifying about persecution
and human rights abuses of a foreign government.
While the paragraph 2(b) Charter rights of the
press are important in a democratic society, the
applicant submits that these rights are not abso
lute but must be balanced against the unique
rights of the applicant in a refugee hearing, par
ticularly his section 7 Charter rights to life, liberty
and security of the person. The applicant submits
that where two interests are competing and other
wise equal, discretion should be exercised in favour
of the person whose rights are at stake as opposed
to the person whose freedoms are at issue. As the
Board simply opened the hearing to the public
once it found that the applicant did not offer
enough evidence to discharge its burden, it there
fore erred in failing to balance these interests.
Finally, the applicant submits that the Board
erred when it released its reasons to the press on
November 14, 1990. This had the effect of retroac
tively declaring the hearing open to the public, the
possibility of which was not made known to the
applicant nor provided for in the undertakings.
The respondent submits that the onus upon a
refugee claimant when seeking to exclude the press
from a hearing is to show that on the "balance of
probabilities" harm could come to him or his
family as a result of the disclosure of certain facts.
While the Board stated that the burden of proof
upon a claimant attempting to bar the media was
that of a "serious possibility", the respondent sug
gests that this was in fact a lesser burden of proof.
The fact then that the Board used a lower test
than the ordinary civil standard does not warrant
intervention by the Court in this instance. The
respondent also provides some assistance with
respect to the interpretation of "adversely affect"
and "impede", based on the relevant jurisprudence
to date. It is suggested that there must be some
direct link between the publicity and the personal
danger to refugee claimants or their families
before the claimant will be "adversely affected"
and that the presence of the public will prejudice
or "impede" the fair hearing of the claimant, i.e.
because he will not be able to divulge all of the
facts in support of his claim for refugee status.
The intervenor submits that to establish a viola
tion of a section 7 Charter right, the applicant
would have to establish, on a balance of probabili
ties, that his life, liberty or security of the person
would be threatened if his refugee hearing were
held in public. A refugee claimant is required to
establish that harm to him or his family resulting
from the disclosure of certain facts is beyond the
realm of speculation and mere possibility. The
intervenor submits that a burden less onerous than
that applied by the Board would effectively negate
the media's constitutionally guaranteed right of
access to judicial and quasi-judicial proceedings as
a refugee claimant could almost always establish a
mere possibility of harm to him or his family. The
intervenor submits that the Board did indeed bal
ance the competing Charter rights and that in this
instance, in view of the applicant's failure to dis
charge the burden placed upon him by subsection
69(2) of the Act, the media's right of access
outweighed the applicant's right to an in camera
hearing.
Finally, the intervenor submits that the Board
was justified in deciding to make the evidence
offered by the applicant during the in camera
hearing public in its reasons for decision. In any
event it is submitted that the Board's actions do
not affect its decision to allow the media access to
the applicant's refugee hearing. The intervenor
notes that the applicant did not offer any evidence
at the hearing other than that which he personally
disclosed at his press conference on March 23,
1990.
STATUTORY PROVISIONS
The statutory provision relevant to this applica
tion is subsection 69(2) of the Immigration Act,
and sections 2 and 7 of the Canadian Charter of
Rights and Freedoms:
69....
(2) Subject to subsection (3), proceedings before the Refugee
Division shall be conducted in camera unless it is established to
the satisfaction of the Division, on application by a member of
the public, that the conduct of the proceedings in public would
not impede the proceedings and that the person who is the
subject of the proceedings or any member of that person's
family would not be adversely affected if the proceedings were
conducted in public.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
ANALYSIS
There are a number of recent decisions in our
Court which are most helpful here. I should first
refer to the very comprehensive analysis of my
colleague, Martin J. in Toronto Star Newspapers
Ltd. v. Kenney, [1990] 1 F.C. 425 when he con
sidered the interpretation of and purpose behind
subsection 29(3) of the Immigration Act [as am.
by R.S.C., 1985 (1st Supp.), c. 31, s. 99], a
provision which is similar to the provision at issue
here. Subsection 29(3) provides:
29. ...
(3) Except as provided in subsection (2), an inquiry by an
adjudicator shall be held in camera unless it is established to
the satisfaction of the adjudicator, on application by a member
of the public, that the conduct of the inquiry in public would
not impede the inquiry and that the person with respect to
whom the inquiry is to be held or any member of that person's
family would not be adversely affected if the inquiry were to be
conducted in public.
Mr. Justice Martin's review of the legislative histo
ry of subsection 29(3), which included excerpts
from House of Common Debates, has very recent
ly been referred to at length in Pacific Press Ltd.
v. Canada (Minister of Employment and Immi
gration), [1991] 2 F.C. 327 (C.A.), (hereinafter
"McVey No. 2") and is very helpful in establishing
the purpose behind the provision. His review indi
cates that both the principle and the practice of
allowing a Convention refugee claimant the com
fort of in camera proceedings have been part of
immigration law for some time. MacGuigan J.A.
in McVey No. 2 commented:
It seems clear from this account of the genesis of this legislative
provision that its very purpose was to prevent access to immi
gration inquiries by the press and the public, except in limited
circumstances, in order to enable Convention refugees to speak
freely of their experiences, without danger of reprisals from
those from whom they have fled.
I should also refer to the very instructive anal
ysis of Mr. Justice Mahoney in an earlier decision,
Pacific Press Ltd. v. Canada (Minister of
Employment and Immigration), [ 1990] 1 F.C. 419
(hereinafter "McVey No. 1"). In McVey No. 1,
Mahoney J.A., for the Court, found that the onus
placed on a member of the public by subsection
29(3) of the Act to show that a hearing should not
be held in camera was a slight burden that could
be inferentially satisfied by the assertion of a right
of access to a judicial or quasi-judicial proceeding
founded on paragraph 2(b) of the Charter. The
onus would then shift to the person seeking to
exclude the press to establish an evidentiary basis
to support the lawful impairment of the paragraph
2(b) right in such a proceeding. He reasoned that
[at pages 422-423]:
Subsection 29(3) does give the Adjudicator a discretion. It
places on a member of the public, interested in doing so, the
onus of establishing two negatives: that the conduct of the
inquiry in public would not impede it and that neither the
person concerned nor any member of that person's family
would be thereby adversely affected. The latter limitation is
odd. What, for example of the prison guard, policeman or
soldier who, through friendship, bribery or sympathy, has
facilitated a refugee claimant's escape and what of resident
foreigners, perhaps missionaries or business people, willing to
testify only if their opportunity to return is not prejudiced?
It may be arguable that the onus is misplaced. Again, I think it
best, in the circumstances, not to express a concluded opinion
on that aspect of the provision. The practical consequence
seems not, in my view of the question, to be particularly
significant since the standard properly to have been applied by
the Adjudicator was as stated by Aylesworth, J.A., in R. v.
Cameron, [19661 58 D.L.R. (2d) 486; (1966), 4 C.C.C. 273; 49
C.R. 49 (Ont. C.A.), at page 498 D.L.R.:
Where, however, the onus lies upon the Crown to prove a
negative as an element of the charge, little proof will often
suffice. Such proof often must be drawn by inference from
other proven facts.
It seems to me that the assertion of a right to access to a
judicial or quasi-judicial proceeding founded on paragraph 2(b)
of the Charter must, of itself, inferentially satisfy the slight
burden and shift the onus to the person seeking to exclude the
press.
Whatever freedom of the press entails, there must surely be an
evidentiary basis to support its lawful impairment in a judicial
or quasi-judicial proceeding.
Relying on the above interpretation of subsec
tion 29(3), Martin J. in Toronto Star, determined
that subsection 29(3) was constitutionally sound.
In McVey No. 2, however, MacGuigan J.A. con
cluded that the "possible constitutional problems
with subsection 29(3) are not limited to the ques
tion of onus" and he determined that the constitu
tional validity of the provision had not been finally
resolved in McVey No. 1. MacGuigan J.A. then
concluded that the legislative purpose behind sub
section 29(3) was designed to and did indeed
infringe the freedom of the press as set out in
paragraph 2(b) of the Charter. Although he rea
sons that the objective behind subsection 29(3) "is
of sufficient stature to warrant overriding freedom
of expression and of the press" he nevertheless
concludes that it could not be justified under sec
tion 1 of the Charter. He held that "in my opinion
subsection 29(3), as written, is seriously excessive
legislation, and should be held to be of no force or
effect under subsection 52(1) of the Constitution
Act, 1982". However, in order to preserve the rule
of law in this area he deemed subsection 29(3) to
be temporarily valid for a period of one year to
allow Parliament sufficient time to amend the law
in accordance with his decision.
Whether subsection 69(2) has similar failings
remains unanswered and in any event, the consti
tutionality of subsection 69(2) is not under attack
here. If anything, this most recent decision would
strengthen the position of those who seek to have
the applicant's Convention refugee hearing open to
the public. Although Mr. Justice Martin's conclu
sion that subsection 29(3) was constitutionally
sound has now been shown to be incorrect, I
believe that the decisions in Toronto Star, McVey
No. I and now McVey No. 2 nevertheless establish
that freedom of the press cannot be impaired in a
judicial or quasi-judicial proceeding without an
evidentiary basis and that once the paragraph 2(b)
right of access is asserted the onus shifts to the
person seeking to exclude the press.
On the basis of these decisions then, it is the
obligation of the Board to afford a refugee claim
ant in camera proceedings unless, of course, the
claimant or a member of the public requests other
wise. Where interested parties appear and seek to
open the proceedings to the public, as in the
present case, the tribunal must hear both evidence
and argument, again preferably in camera, and
render their decision. In my view, this is precisely
what the Board did. There is, therefore, no basis
for success on the present application in the proce
dure followed by the Board.
It is argued that the Board made two errors
which justify the present relief: the first in improp
erly requiring the applicant to establish a serious
possibility of harm; the second in making public
the decision which is under attack. There is no
issue here about the possibility of impeding the
inquiry, only that of prospective harm to the appli
cant or members of his family.
The concluding words of subsection 69(2) are as
follows:
... the conduct of the proceedings in public would not impede
the proceedings and that the person who is the subject of the
proceedings or any member of that person's family would not
be adversely affected if the proceedings were conducted in
public.
As has already been emphasized in the jurispru
dence to which I have referred, the section
includes more than one negative. In positive terms
and in the context of this case, the Board can open
the hearing if it concludes that to do so would not
adversely affect the claimant or his family.
The portion in issue here occurs in the final
quoted paragraph of the Board's decision:
For a claim to be accepted it is not necessary for the claimant
to demonstrate that he or she already has or in the future,
would, suffer persecution. A variety of factors could conceiv
ably lead to a finding that a serious possibility of persecution
exists. Similarly, where a claimant attempts to bar the media
from a hearing he or she has only to show that there is a serious
possibility that, as a result of disclosure of certain facts, harm
could come to him or his family. While the Refugee Division
sympathizes with Mr. Blackwood's desire for privacy, he failed
to provide sufficient reasons to override the public's right to
attend. [Emphasis added.]
What the Board appears to have done in the first
two sentences is to establish the test for success in
a claim for refugee status and, in the next two
sentences which are under attack, to draw a paral
lel with Mr. Blackwood's onus here with respect to
a subsection 69(2) application. The earlier refer
ence to the reasoning of Mahoney J.A. in Pacific
Press Ltd., supra, makes it clear that once access
is requested, there is an onus upon the claimant.
Exclusion of the press, if it is done, must have an
evidentiary basis. Does Mr. Blackwood discharge
that onus by raising any possibility of harm what
soever? In my opinion, so low a standard would
have effectively relieved him of any obligation.
The Board added the word "serious" and having
regard to the sense of their decision in its entirety,
that does not justify the relief sought.
I note as well the very helpful reasoning of
Décary J.A., in Osei v. Canada (Minister of
Employment & Immigration) (1990), 12 Imm.
L.R. (2d) 49 (F.C.A.). He noted that [at page 51]
"[i]n the same way as an improper formulation of
the test by the tribunal may be obviated by a
proper application, a proper formulation may be
obviated by an improper application." Here, even
if the Board incorrectly stated the test to be
applied, they reached an appropriate result. A fair
interpretation of the Board's resolution of this
dispute is that the applicant did not offer evidence
or argument that persuaded the Board in any way.
I conclude, therefore, that the Board did not err in
law in formulating or applying the test as has been
submitted by the applicant. I cannot accept the
submission that the word "serious" provides jus
tification to set this decision aside. Even if it did,
the finding of the Board that Mr. Blackwood did
not adduce any persuasive evidence or argument
supports their conclusion whether they had used
the offending word or not.
Finally, with respect to the submission that by
publishing the decision the Board had failed in its
duty of fairness or obligation of confidentiality to
the applicant, the result must be the same. The
decision makes reference to a press conference
several months earlier in which the applicant
apparently made extensive disclosures. Granted,
the context of that observation is the absence of
harm to the applicant in the interim, but it is an
important fact with respect to the possibility of
prejudice or harm by the publication of the deci
sion in issue here. When I couple that reference
with the Board's conclusion that Mr. Blackwood
offered no evidence or persuasive argument of a
serious possibility of harm resulting from the open
conduct of the inquiry, I am unable to conclude
that any harm befell the applicant as a result of
publication.
CONCLUSION
For these reasons, this application is dismissed.
No order as to 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.