CUB N/A
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date:
July 27, 1987
Docket:
T-1588-87
Umpire's Decision:
CUB N/A
BETWEEN :
SOUTHAM INC., JULIAN BELTRAME and
CANADIAN NEWSPAPERS COMPANY LIMITED,
applicants,
- and -
MINISTER OF EMPLOYMENT AND IMMIGRATION
(BENOIT BOUCHARD), CHIEF OF ADJUDICATORS FOR
QUEBEC AND THE ATLANTIC REGION (MICHEL MEUNIER)
ATTORNEY-GENERAL OF CANADA and
DEPARTMENT OF EMPLOYMENT AND IMMIGRATION,
respondents.
REASONS FOR ORDER
(Rendered orally from the Bench on
July 27, 1987)
ROULEAU J.:
The applicants seek, by way of originating motion, a number of orders. In essence their motion concerns freedom of the press and the public's right of access to immigration detention review hearings presently being pursued in Halifax, Nova Scotia.
The facts in this case have not been made entirely clear, but those that are germane to the ultimate underlying issue in dispute are sufficiently clear. They are set out in point form as follows:
(1) an Order pursuant to section 24 of the Canadian Charter of Rights and Freedoms directing that the Respondent, MICHEL MEUNIER conduct the proceedings under section 104(6) of the Immigration Act, 1976, the continued detention of persons, allegedly being Indian migrants transported on board the M.V. Amelie, in a manner consistent with section 2(b) of the Charter, thereby permitting the Applicants and members of the public to exercise the fundamental freedom to be present at all proceedings brought pursuant to section 104(6) of the Immigration Act, 1976;
(2) in the alternative, an order pursuant to section 24 of the Canadian Charter of Rights and Freedoms directing that the Respondent, MICHEL MEUNIER conduct the aforesaid proceedings in a manner consistent with section 2(b) of the said Charter by allowing the said Applicants to make submissions on a case by case basis in support of its application to have access to and report on the proceedings pursuant to section 104(6) of the Immigration Act, 1976;
(3) an order in the nature of prohibition to prevent the Respondent, MICHEL MEUNIER from conducting a review pursuant to section 104(6) of the Immigration Act, 1976 in the aforesaid proceedings until he has extended to the Applicants the right to be present at such proceedings, or, in the alternative, the right to be heard before being excluded from those proceedings;
(4) an order in the nature of mandamus directing the Respondent, MICHEL MEUNIER to exercise his duty under the Immigration Act, 1976 to consider in each case, when exercising his authority under section 104(6) of the said Act, the merits of excluding the Applicants from the aforementioned proceedings.
It will be convenient to deal with the first two together and the last two as another section.
I. Re: Charter, Subsection 24(1) Declarations:
This requested relief can be considered quite summarily because of a technical procedural problem. The applicants seek these two declarations by way of an originating motion. This Court has consistently held, however, that declarations may be sought only by way of an action unless the respondent expressly consents, and not merely acquiesces with no objection [Wilson v. Minister of Justice, [1985] 1 F.C. 586 (F.C.A.); Lussier v. Collin, [1985] 1 F.C. 124 (F.C.A.); Le Groupe des Éleveurs de Volailles et al. v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (F.C.T.D.); and Pacific Salmon Industries Inc. et al. v. The Queen et al., [1985] 1 F.C. 504 (F.C.T.D.)]. This rule serves to ensure that the Court will not have to issue declaratory judgments in a factual vacuum. Here the respondent did not expressly consent to this form of proceedings, and indeed some facts were in dispute, or at least uncertain. Consequently, no declarations, pursuant to subsection 24(1) of the Charter, can issue. This, though, does not end the discussion of the Charter in this case; it still must be considered in the alternative prayers for relief in the context of administrative law.
II. Re: Prerogative Writs of Prohibition and Mandamus:
In requesting these two orders, the applicants in effect seek an order prohibiting the adjudicators from conducting the detention review hearings in camera, or at least requiring the adjudicators in each case to hear submissions from the applicants on the issue of their access to the hearings.
The adjudicators exercise the authority and powers conferred upon them by the Immigration Act, 1976. This Act is silent with respect to the procedural point of public access to the detention review hearings. Where the enabling legislation is silent on a point of procedure, a statutory decision-maker is the master of his own proceedings and may determine the procedure to be followed [Re Millward and the Public Service Commission, [1974] 2 F.C. 530 (F.C.T.D.) and Rémis St. Louis v. Treasury Board, [1983] 2 F.C. 332 (F.C.A.)]. Thus, on the surface the adjudicators appear to have acted within their jurisdictional limits in ordering that the detention review hearings be held in camera.
However, superimposed upon that general rule of administrative law is the Charter of Rights and Freedoms. Subsection 2(b) of the Charter guarantees everyone the freedom of "expression, including freedom of the press and other media of communication." Courts that have had to interpret this constitutional provision have held that freedom of the press encompasses a right of access to judicial proceedings [Re Southam Inc. and the Queen (No. 1) (1983), 3 C.C.C. (3d) 515 (Ont. C.A.), which was reaffirmed by the same Court in Re Southam Inc. and the Queen (No. 2) (1986), 26 D.L.R. (4th) 479, adopting the trial judgment of Holland J. (1985) 14 D.L.R. (4th) 683, (Ont. N.C.)]. Some comments of MacKinnon, A.C.J.O. from Re Southam (No. 1) are germane to the case at bar. At page 521, he wrote the following:
There can be no doubt that the openness of the courts to the public is one of the hallmarks of a democratic society. Public accessibility to the courts was and is a felt necessity; it is a restraint on arbitrary action by those who govern and by the powerful.
Then, at page 525 he continued:
It is true, as argued, that free access to the courts is not specifically enumerated under the heading of fundamental freedoms but, in my view, such access, having regard to its historic origin and necessary purpose already recited at length, is an integral and implicit part of the guarantee given to everyone of freedom of opinion and expression which, in terms, includes freedom of the press. However the rule may have had its origin, as Mr. Justice Dickson pointed out, the "openness" rule fosters the necessary public confidence in the integrity of the court system and understanding of the administration of justice.
That decision arose in the context of a court proceeding. The detention review hearing in this case involves a statutory body exercising its functions and it is to be determined if they are judicial or quasi-judicial in nature and by implication subject to accessibility; does the openness rule apply to their proceedings. Mr. Justice Dickson, as he then was, in Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495 determined that a proceeding can be found to be judicial or quasi-judicial if it met certain tests and he wrote as follows at page 504:
(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?"
I am satisfied that these tests in the case at bar have been met and it is not at all unreasonable to extend to proceedings of such decision-makers the application of this principle of public accessibility. After all, statutory tribunals exercising judicial or quasi-judicial functions involving adversarial-type processes which result in decisions affecting rights truly constitute part of the "administration of justice". The legitimacy of such tribunals' authority requires that confidence in their integrity and understanding of their operations be maintained, and this can be effected only if their proceedings are open to the public.
I am of the view that the applicants have a prima facie right of access to the detention review proceeding. This right, like all rights, is not absolute, however. That is to say, it may be limited when it comes into conflict with other competing rights and interests. For example, in the context of a detention review proceedings a conflicting right could be a migrant's section 7 right to life, liberty or security of the person which could be jeopardized by the publication of his/her identity. Or, as another example, the public's interest in national security could in some situations, constitute a section 1 reasonable limit to the openness of the hearing [e.g. section 119 of the Immigration Act, 1976 prescribes a limit upon public access to security or criminal intelligence evidence presented by the Minister and Solicitor General].
In accordance with the foregoing orders of prohibition and mandamus shall issue. The adjudicators are prohibited from conducting the detention review hearings in the absence of the applicants unless the applicants' right of access is outweighed or limited in any given case by counterbalancing rights or interests; if any objections to the public's access is raised, the applicants must be given an opportunity to present submissions on this point.
OTTAWA
July 31, 1987