A.B. v. Canada (Minister of Citizenship and Immigration), docket IMM-2156-97

BETWEEN:

     IMM-2156-97

     A. B.

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

AND:

     IMM-2157-97

     A. B.

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     and

     THE ATTORNEY GENERAL OF CANADA

     Respondents

AND:

     IMM-2158-97

     A. B.

     Plaintiff

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     THE ATTORNEY GENERAL OF CANADA

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     Defendants

     REASONS FOR ORDERS

---

MacKAY J.:

     These reasons concern the disposition of the principal motions raised, and motions for confidentiality orders, in three proceedings where the principal issues are the same, and the same plaintiff/applicant (the "applicant") seeks relief against defendants/respondents (the "respondent") representing Her Majesty's government. The principal issue raised in the three proceedings concerns the right of the impecunious applicant, a refugee in Canada, to "competent and careful counsel" funded by public funds for his representation by counsel in relation to an immigration inquiry convened to consider his admissibility to Canada as a result of allegations that he has committed an act or omission outside Canada that constitutes a war crime. The allegations are of the nature proscribed by paragraph 19(1)(j) of the Immigration Act, R.S.C. 1985, c.I-2 as amended, (the "Act") and the inquiry is by an adjudicator pursuant to s. 27 of the Act.

     The circumstances are somewhat unusual in a procedural sense. Those warrant brief description before I turn to the substantive issues raised in all three proceedings.

The procedural background

     The background can be briefly described. The plaintiff in IMM-2158-97, is the applicant in the other two proceedings, IMM-2156-97 and IMM-2157-97. The first of those proceedings was commenced by statement of claim, the other two are applications for leave and for judicial review. In all three proceedings the applicant seeks the same confidentiality order and, as noted, all proceedings raise the same basic issue as a ground for declaratory relief or for quashing a negative decision on behalf of the Minister of Citizenship and Immigration (the "Minister").

     The matter originally set down for hearing was a motion by the respondent for an order striking the applicant's statement of claim in Court file IMM-2158-97. With two clear days in advance of the hearing of that motion the applicant filed a counter-motion in that file, pursuant to Rule 474, seeking answers to questions that concern the same issues as are raised in all three proceedings. At the same time the applicant filed motions in each of the other two proceedings, that the application for leave and for judicial review be heard orally, and that the hearing be at the same time as the motion in IMM-2158-97, since the issues are essentially the same. These latter motions of the applicant, that the leave application be heard orally, rely on s-s. 82.1(4) of the Act and were brought with consent. Both parties were agreed that all matters relating to all three files should be dealt with at the same time by the same court. The Court was provided with sufficient background about the circumstances, and with assurance of counsel for the parties that the application records in each of the proceedings for leave and for judicial review were sufficiently complete for purposes both of considering leave and for a hearing of the matter, if leave be permitted. In view of the similarity of the issues raised, recognizing that the applications for leave raise issues that are arguable, and with a view to judicial economy, accepting that the issues should be dealt with before the expected reconvening of the inquiry, I orally granted leave to seek judicial review in the two related files (IMM-2156-97 and IMM-2157-97), and ordered that they be heard together with the respondent's motion to strike in IMM-2158-97 and the applicant's counter-motion in that same file.

The circumstances of the applicant

     The applicant was found to be a Convention refugee by the Refugee Division of the Immigration and Refugee Board after his arrival in Canada. He then made application in accord with the Act for landing as a permanent resident. Processing that application was delayed because of allegations on behalf of the Minister of Citizenship and Immigration that the applicant is a person described in paragraph 19(1)(j) of the Act. If so found he would not be admissible as a permanent resident in Canada, and he would be subject to deportation.

     Paragraph 19(1)(j) of the Act precludes admission to Canada of

(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.

     The allegations against the applicant led to his arrest in July 1996 and he was detained pending an inquiry into those allegations. Following an initial inquiry in July 1996 which did not deal with the Minister's serious allegations, the applicant was ordered released from detention on July 30, 1996. The Minister was not then prepared to proceed with an inquiry. Indeed, it was not until April 1997 that the inquiry to consider the allegations was convened, only to be adjourned to June 1997, and then adjourned again, with consent of the applicant. A brief hearing was held by the adjudicator in August 1997 to hear testimony of a visiting expert witness called by the Crown.

     For more than a year, from August 1996, counsel acting for the applicant has sought appropriate disclosure of the facts alleged and the evidence, to be adduced by the Minister, to which the applicant must be expected to respond at his inquiry. Counsel for the applicant continued to request disclosure of the case to be met but except for apparently inadvertent disclosure of two documents by the Crown in December 1996, virtually nothing else was disclosed until, in mid-July 1997, the Crown produced ten volumes of documentary evidence. Since June 1996, when the applicant was informed of allegations and of the inquiry, the Crown has apparently continued to seek further evidence, including sending counsel abroad to the country whence the applicant came to Canada, apparently to investigate charges, said to be outstanding against the applicant in his home country, which allege he was involved in mass murders. The evidence is sought in support of the allegations against the applicant to be heard by the adjudicator concerned with the inquiry to investigate and determine these matters.

     In the fall of 1996 the applicant applied for legal aid under the Ontario plan. His application was approved, but with support under the plan limited to only 16 hours of preparation time for counsel, in addition to all attendances at hearings. The Ontario plan is said to allow for discretionary increases beyond the support originally committed, but any increase would only be considered once the inquiry is completed. Thus, there is no assurance for support of counsel for any preparation time beyond the minimum now set.

     The applicant wrote to the Minister in October 1996, requesting funding for counsel to assist him in regard to the inquiry. That request was not answered. In April 1997 the applicant wrote again to the Minister renewing the request for funding counsel for the case. By letter of May 7, 1997, after consultation between staff of the Minister and of the Attorney General, counsel on behalf of the Minister refused that request.

     Counsel for the applicant is said to have devoted many more hours on the case already than the legal aid limit for preparation time, in particular in efforts to seek appropriate disclosure. The applicant urges that the committed legal aid support for 16 hours of preparation time is not adequate to ensure a fair hearing in the circumstances of this case, particularly in light of delays in proceeding with the inquiry, delays occurring because the Minister has not been prepared to proceed. It is said that had the inquiry been expeditiously conducted soon after the department's allegations were made, the limited preparation time supported by legal aid might then have been sufficient, but that was not the case.

     It is the view of the applicant that the matters involved in the proceedings are complex and the hearings will be lengthy. He desires to be represented throughout the proceedings by counsel who is well prepared for the hearings. He raises as an issue his right under s. 7 of the Charter to be represented by competent and prepared counsel in proceedings in the nature of the inquiry here which have such serious implications for his welfare.

     Because counsel was uncertain how the issue of funding for his services might best be raised, proceedings were initiated by the three processes here concerned: by statement of claim in Court file IMM-2158-97, and also by applications for leave and for judicial review in Court file IMM-2156-97, seeking review in relation to the decision of May 7, 1997 not to provide funding for the applicant's counsel, and also in Court file IMM-2157-97 seeking declaratory relief pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 as amended. All three proceedings were commenced by filing on the same day, May 26, 1997, the statement of claim and the two originating notices of motion.

     In all three proceedings the relief sought is essentially the same. Thus the applicant seeks, as expressed in his statement of claim,

i)      a declaration that he is entitled in the circumstances of this case, pursuant to s. 7 of the Charter, to be represented by competent and careful counsel;

ii)      a declaration that the respondent Minister must fund counsel to represent the applicant in the matter of the immigration inquiry in this case;

iii)      or in the alternative, an order that the immigration inquiry be stayed until the respondent Minister agrees to provide funding for counsel for the applicant; and

iv)      costs on a solicitor-client basis.

The positions of the parties to the action

     The matter originally set down for hearing, the motion of the respondent in file number IMM-2158-97 for an order striking the applicant's statement of claim is based on Rule 419(1)(a), on the ground, it is urged, that it discloses no reasonable cause of action. In the alternative, an order is sought extending the time for a statement of defence to be filed. The applicant's motion, countering the motion to strike, made pursuant to Rule 474, seeks answers to three questions which simply raise the applicant's entitlement to the orders sought by way of relief in the action and in the proceedings for judicial review.

     The applicant's statement of claim sets out the basic facts of the plaintiff's refugee status in Canada, his application for landing, his detention in July 1996, the delays in and commencement of the inquiry under the Act and its current adjourned state. The statement of claim continues with three paragraphs alleging further facts and then sets out the relief requested as earlier described in these reasons. The three paragraphs alleging facts for the basis of the claim for relief are as follows:

4.          The Plaintiff applied for legal aid in the fall of 1996. The Ontario Legal Aid Plan agreed to fund the Plaintiff's case on the following terms: only 16 hours of preparation would be paid for and the Plan would pay for all attendance at the hearing. The Plan allows for discretionary increases, but only once the hearing is finished. The Plaintiff wrote to the Minister to request funding for the Plaintiff's case in October 1996, because at that time the funding offered by the Plan appeared woefully inadequate, given the lack of disclosure and the lack of preparation by Immigration officials. The Minister never replied. The Plaintiff wrote again in April 1997. By letter dated May 7, 1997, the request was refused. The letter indicated that officials from the Department of Justice and the Department of Citizenship and Immigration participated in the decision to refuse funding.

5.          The Plaintiff has sought disclosure on a continuing basis since August 1996. The Plaintiff made a motion to the Adjudication Division in December 1996 to compel Immigration to provide additional disclosure. The motion was withdrawn because Immigration officials involved in a different proceeding provided the documents that the Plaintiff was seeking. The Plaintiff made a further disclosure request by letter dated December 17, 1997, requesting witness statements etc. The request was repeated in a letter to the Department of Justice dated April 2, 1997. Only limited disclosure has been made since the request made in December (a resume for an expert witness). The disclosure has not been adequate. Immigration officials have sent a lawyer from the Department of Justice to [the applicant's country of origin] on or about May 23, 1997, for further investigation.

6.          The Plaintiff's counsel estimates that he has spent some 40-50 hours on the case so far. He did not acknowledge the certificate from Legal Aid. The 16 hours allowed for under the Plan are simply not adequate for a fair hearing in the circumstances of this case. If Immigration had been prepared with all of its evidence at the outset, the Legal Aid tariff might have been adequate. Given the difficulties in obtaining disclosure, the Legal Aid tariff is is [sic] no way adequate. The matters in this proceeding are complex and lengthy. The Plaintiff wants to have counsel to represent him at the hearing. The Plaintiff cannot have a fair hearing unless counsel is provided to him to give the Plaintiff an adequate opportunity to prepare for the hearing.

In relation to paragraph 5 and the issue of disclosure there raised, I note again that ten volumes of documents were provided to the applicant late in the summer of 1997.

     The test applicable on a motion to strike pleadings, under Rule 419(1)(a), the rule here relied upon by the respondent, is that set out by Madam Justice Wilson in Operation Dismantle v. The Queen et al.¹, applying the test previously set out by Mr. Justice Estey in Attorney General of Canada v. Inuit Taparisat of Canada². That is, assuming all the facts pleaded are deemed to be capable of proof or to have been proven, the court will strike out any claim of the applicant only in plain and obvious cases where the court is satisfied beyond doubt that there is no reasonable cause of action.

     For the respondent in IMM-2158-97 it is urged there is no reasonable cause of action pleaded, none that would warrant the declaratory relief sought or the stay of the immigration inquiry as proposed, since there is no obligation on the respondent to provide funding for counsel acting for the applicant in relation to his immigration inquiry.

     There is no such obligation, it is urged, for several reasons. Legal aid is a provincial responsibility and any funding of legal expenses by the respondent could only be on an ex gratia basis, not based on any legal duty.

     Further, the respondent submits that the Act in s-s. 30(1) recognizes that a person with respect to whom an inquiry is to be held has a right to obtain counsel, but that is expressly stated to be at his or her own expense, and that provision is not here challenged on constitutional grounds. That subsection is contrasted with certain provisions of the Criminal Code (ss. 672.24, 672.5) and of the Young Offenders Act (s.11) which expressly authorize courts concerned to appoint counsel or otherwise ensure that the person before them is represented by counsel. There is no similar provision made in relation to immigration inquiries, and the respondent urges, by inference Parliament would have provided for counsel to be appointed and funded in immigration proceedings had it intended such services to be provided.

     My colleague, Mr. Justice Cullen, has held that this Court has no jurisdiction to appoint state-funded legal counsel for an applicant seeking leave and judicial review³ of a decision under the Act. That lack of jurisdiction in this Court to appoint state-funded counsel, in my opinion, is relevant in these circumstances where a declaration is sought, or other relief to the same effect, that the respondent Ministers should provide funding for representation by counsel of the applicant in an inquiry under the Act. Clearly if there is no legal duty under the Act requiring the respondent Ministers to fund counsel for those subject to proceedings of an immigration inquiry, there would be no basis for the court, in exercise of its discretion, to declare any entitlement of the applicant to services of publicly-funded counsel unless there be a duty implied otherwise by law.

     Finally, it is urged by counsel for the respondent that there is no right at common law or under the Charter to have counsel funded by the state in these proceedings. That is not accepted for the applicant, whose claim to relief is based upon the principle of fairness and upon s. 7 of the Charter. In reliance on the principle in R. v. Rowbotham⁴, for the applicant it is urged that in the circumstances of this case representation of the applicant by counsel is essential for a fair hearing of the issues before the inquiry. Those circumstances include the potential loss of the applicant's right to apply for landed immigrant status and to have that application determined within a reasonable time, the prospective harm he faces if he were deported to his home country, where it is implied he could not anticipate a fair trial on charges said to be outstanding, and the continuing failure of the Minister to disclose adequately the bases for concerns leading to the inquiry, including failure to disclose prospective witnesses and anticipated evidence through will-say statements.

     It is urged that in these circumstances the preparation time supported by legal aid funding is inadequate, a position all but acknowledged by counsel for the respondent. It is urged that under the principle of fairness, or by virtue of s. 7 of the Charter as in Rowbotham, the applicant should be assured of support for competent counsel to provide advice throughout the process. This is so, it is said, particularly where there has been substantial delay because the Minister has not been prepared to have the inquiry proceed.

     In Rowbotham the Ontario Court of Appeal upheld the decision of the trial judge to stay criminal proceedings, which were exceptional in their anticipated length and complexity, until necessary funding was assured to support counsel for the accused, who lacked the means to employ her own counsel and who had been refused legal aid. Rowbotham was referred to in R. v. Sechon⁵, where the same principle was acknowledged, but not there followed, by the Quebec Court of Appeal. In that case Rothman J.A., writing for the Court, said:

I am therefore satisfied that, although the right to counsel is not constitutionally guaranteed in express terms under the Charter, where the length or complexity of the proceedings or the circumstances of the accused are such that the accused would not obtain a fair trial without the assistance of counsel, counsel must be provided for him if he does not himself have the means to retain counsel. And where an accused, for whatever reason, is not represented by counsel at his trial, it is clear, as well, that the trial judge has a duty to provide reasonable assistance to the accused in the presentation of evidence and in putting his defences before the court.

That Court concluded in Sechon that an appeal should be dismissed where the appellant, who was convicted of public mischief at trial where she was not represented by counsel, had not been denied the right to be represented by counsel, and no violation of her right to a fair trial was established merely by that lack of representation at the trial.

     Counsel for the respondent distinguishes the circumstances in Rowbotham and Sechon from those in this case. In those cases the proceedings were criminal prosecutions, not administrative proceedings comparable to those here involved under the Immigration Act, and in both of those cases legal aid was refused whereas in this case some support, including support at hearings, is available under provincial legal aid. Moreover, it is urged that even in the field of criminal law the case for state support for funding of counsel for an accused, as in Rowbotham, arises only in exceptional circumstances, as the court's disposition of the appeal in Sechon appears to underline.

     In R. v. Prosper⁶, determined after Rowbotham, the Supreme Court of Canada declined to read into s.10 of the Charter a positive obligation to provide funding of the right to counsel. For the majority of the Court, Chief Justice Lamer wrote as follows:

...there is evidence which shows that the framers of the Charter consciously chose not to constitutionalize a right to state-funded counsel under s. 10 of the Charter: Minutes of the Proceedings and Evidence of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada (January 27, 1981). Specifically, a proposed amendment, which would have added the following clause to what is now s. 10 of the Charter was considered and rejected...:

(d) if without sufficient means to pay for counsel and if the interests of justice so require, to be provided with counsel;

...

In my opinion, it would be imprudent for this Court not to attribute any significance to the fact that this clause was not adopted. In light of the language of s. 10 of the Charter, which on its face does not guarantee any substantive right to legal advice, and the legislative history of s. 10, which reveals that the framers of the Charter decided not to incorporate into s. 10 even a relatively limited substantive right to legal assistance (i.e., for those "without sufficient means" and "if the interest of justice so require"), it would be a very big step for this Court to interpret the Charter in a manner which imposes a positive constitutional obligation on governments. The fact that such an obligation would almost certainly interfere with governments' allocation of limited resources by requiring them to expend public funds on the provision of a service is, I might add, a further consideration which weighs against this interpretation.

     In regard to the nature of the proceedings in issue here, the respondent relies on the words of Mr. Justice Sopinka in Chiarelli v. Canada⁷, where the Supreme Court dealt with argument based on principles of fundamental justice raised on behalf of a non-citizen subject to extradition. In that case his Lordship said:

...in determining the scope of principles of fundamental justice as they apply to this case, the Court must look to the principles and policies underlying immigration law. The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country.

...

Thus, Parliament has the right to adopt an immigration policy and to enact legislation prescribing the conditions under which non-citizens will be permitted to enter and remain in Canada. It has done so in the Immigration Act.

Analysis and determinations

     In my opinion R. v. Rowbotham, upon which the applicant relies, is clearly distinguishable on at least two important grounds. First, the person affected in that case was a defendant in complex and lengthy criminal proceedings that could result in adverse consequences for her liberty, not as in this case, administrative proceedings to consider the applicant's right to admission to Canada as a permanent resident, a right defined under the Immigration Act. Second, in Rowbotham the person affected had been denied legal aid, and was impecunious and without counsel to represent her; here the applicant is impecunious, but he has not been denied legal aid and, while that is so limited for pre-hearing preparations that counsel for the Minister concedes its measure is likely to be inadequate, the applicant may subsequently seek additional funding under the Ontario Legal Aid Plan. While that is not assured at this stage, neither is the time required for preparatory work, at least until the Minister has determined the evidentiary base to be relied upon, a base that may be substantially dependant upon evidence provided from or through a foreign government.

     I agree with counsel for the Minister that Parliament under s-s.30(1) of the Act has clearly recognized that persons involved in proceedings under the Act are entitled to be represented by counsel, if they desire, but that shall be at the person's own expense. In light of that clear expression of legislative intent there is no statutory jurisdiction in this Court to direct that representation by counsel be funded, even if there were a duty implied under the common law which would obviously be affected by the statute's clear direction.

     Further, in my opinion, a general right to state funding by federal Ministers for representation by counsel does not arise under s. 7 of the Charter in the circumstances of this case, that is, where the impecunious person affected is subject to an inquiry by an adjudicator under the Immigration Act to determine whether, on the basis of allegations and evidence in support of them, the person is not admissible to Canada on grounds defined in the Act. The grounds and allegations raise serious charges against the applicant, and if those are found to be warranted by the adjudicator, a deportation order may be issued against the applicant. Serious as such a step might be for him, if the order be executed, the proceedings leading to deportation engage interests protected by s.7 of the Charter, but those interests and thus the appropriate protection under s.7 may be less than in serious criminal proceedings. In the circumstances of this case, in my opinion, s.7 does not raise a duty for the respondent to provide, in advance of an inquiry, assurance of funding, even funding that might be accepted by the applicant as reasonable, for preparation by counsel to represent the applicant.

     I agree that the comments of Lamer J. in Prosper are strictly referrable to s.10 of the Charter and not to s.7, upon which the applicant here relies. Nevertheless, it would appear contradictory to historic considerations disposed of in parliamentary deliberations leading to the Charter to interpret s.7 as implying a general right to counsel funded by public funds for an impecunious person subject to an immigration inquiry, even when the inquiry concerns very serious allegations, when such a general right was rejected in parliamentary committee in relation to criminal proceedings.

     Because s.7 of the Charter is applicable it will be important for the adjudicator, and for the respondent, to ensure basic fairness for the applicant in the proceedings. If they fail to do so it may well be that the proceedings might be determined, upon subsequent judicial review, to have failed to meet essential standards of fairness or of natural justice, and so should be set aside. Nevertheless, those standards do not require, at this stage, that the respondent assure funding for counsel representing the applicant.

     For these reasons I would allow the respondent's motion in Court file IMM-2158-97 that the plaintiff's statement of claim be struck out pursuant to Rule 419(1). It is plain and obvious that the plaintiff's action could not succeed, for the Court has no authority to order the relief sought, since there is no general right to representation by counsel, funded by the respondent for the applicant's involvement in immigration proceedings. No such right arises, and there is no duty upon the respondent to provide funding for representation by counsel, under the common law, under the statute, or under s.7 of the Charter.

     While it was not argued at the hearing of this matter, there is a further ground upon which, in my opinion, the statement of claim should be struck out. Proceeding by statement of claim, for the relief sought, and in regard to the issue raised, is not consistent with requirements of the Immigration Act and the Federal Court Act. The Immigration Act, s.82.1 requires:

82.1(1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court - Trial Division.

The matter raised by the statement of claim in the circumstances of this case is such that it should be dealt with in accord with s.82.1, and not by a statement of claim. Relief sought in regard to "a decision or order made or any matter arising under" the Immigration Act is to be by application for judicial review, to commence only with leave of a judge. Moreover, by s.18 of the Federal Court Act, R.S.C. 1985, c.F-7 as amended, relief by a declaration is to be sought by application for judicial review pursuant to s.18.1.

     Thus, in addition to substantive reasons, in my opinion, for failure to comply with procedural requirements set by statute, the statement of claim, by which one process here was initiated, should be struck out.

     Since I strike the statement of claim, strictly speaking the plaintiff's motion in the same action for answers to specified questions, pursuant to Rule 474(1), need not be dealt with, on grounds the Court deems it inexpedient to do so. Nevertheless, in the event my determination, that the statement of claim is struck out, should be overturned on appeal, I determine that the following questions raised by the applicant are answered as here set out:

A)      Is the Plaintiff is [sic] entitled in the circumstances of this case pursuant to section 7 of the Charter of Rights and Freedoms [the Charter] the right to be represented by counsel?

Answer -      The plaintiff is entitled to representation by counsel in accord with s-s. 30(1) of the Immigration Act, a provision not inconsistent with s.7 of the Charter.

B)      Are the Defendants required to fund counsel for the Plaintiff in the matter of his immigration inquiry as a matter of law given the circumstances of this case? Answer - No.

C)      Or, in the alternative, should the Immigration Inquiry be stayed until such time as the Respondent's agree to provide funding for the Plaintiff's counsel at his Immigration Inquiry? Answer - No.

     For the reasons set out in dealing with the respondent's motion to strike the statement of claim, I also dismiss the applications in both Court files IMM-2156-96 and IMM-2157-97. In the case of each application there is no basis in the jurisdiction of the Court, under the general law, the Act or s.7 of the Charter, to declare that the applicant is entitled to funding by the respondent for counsel to represent him in the immigration inquiry here underway, or to set aside a decision by the Minister refusing funding for such representation by counsel.

The confidentiality order sought

     As indicated early in these reasons, a motion on behalf of the applicant in all three files sought an order that the Court's files in this matter be sealed as confidential, with access only by order of the Court, and that the name of the applicant in the style of cause be varied to "A.B.". The purpose of the motion was to avoid publication of the name of the applicant or of the existence of the Court files, out of an abundance of caution because of the applicant's fear that the fact of his seeking judicial intervention and the basis on which that is sought would be used against him in any proceedings that might be pursued in his absence, or upon his being returned to his home country. Immigration Regulations, SOR/78-172 provide for certain hearings under the Immigration Act to be conducted in confidence. In my view, the same general considerations, for the protection of individuals from any notoriety or adverse implications perceived to arise from such proceedings, support the Court, at this stage, ordering that its files in regard to the action or judicial review proceedings of the applicant be held in confidence. An Order issued at conclusion of the hearing that the Court's files be so held, pending the outcome of the inquiry concerning the applicant. Thereafter, the confidentiality order should be reviewed, on the initiative of counsel, and in light of the Court's general policy that its files are open and public.

Certification of possible serious question

     When this matter was heard, the Court did not invite, and counsel did not propose, any question for consideration pursuant to s-s.83(1) of the Act for consideration by the Court of Appeal.

     Before disposing of originating motions in files IMM-2156-97 and IMM-2157-97, in accord with Rule 18(1) of the Federal Court Immigration Rules, SOR/93-22 I now provide the parties an opportunity to propose a serious question of general importance to be certified as contemplated by s. 83 of the Act. Counsel are invited to consult. If they can agree on a question or questions to be considered, those should be submitted in writing on or before November 20, 1997. Preferably, if questions are submitted in relation to the decisions in both files the question(s) proposed will be the same in both. If there is no agreement, counsel wishing to propose any question shall submit it by that date, serving the other party with notice, and counsel for the other party may comment on any question so proposed, in writing on or before November 26, 1997.

     In relation to Court file IMM-2158-97, an order now issues allowing the motion of the respondent and striking out the statement of claim. An order also issues responding to the questions raised by motion of the plaintiff, as indicated earlier in these reasons. In each of Court files IMM-2156-97 and IMM-2157-97 an order will issue, dismissing each application by A.B., and dealing with any questions proposed for consideration by the Court of Appeal pursuant to s-s.83(1).

     A copy of these reasons shall be filed on each of the Court files IMM-2156-97 and IMM-2157-97, and the original version of these reasons shall be filed on IMM-2158-97.

     ___________________________________

     JUDGE

OTTAWA, Ontario

November 10, 1997.

__________________

^1.      [1985] 1 S.C.R. 441 at 475, 18 D.L.R. (4th) 481 at 506-7, 59 N.R. 1 at 39.

^2.      [1980] 2 S.C.R. 735">[1980] 2 S.C.R. 735 at 740, 115 D.L.R. (3d) 1 at 5, 33 N.R. 304 at 309-10.

^3.      See: Jiminez-Beza v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 317 (F.C.T.D.).

^4.      (1988), 41 C.C.C. (3d) 1 at 70, 63 C.R. (3d) 113 at 176 (Ont.C.A.).

^5.      (1995), 104 C.C.C. (3d) 554 at 560 (Que.C.A.).

^6.      [1994] 3 S.C.R. 236 at 266-267, 118 D.L.R. (4th) 154 at 174-5, 172 N.R. 161 at 191-2. See also, Schachter v. Canada, [1992] 2 S.C.R. 679 at 723, 93 D.L.R. (4th) 1 at 31, 139 N.R. 1 at 47-48.

^7.      [1992] 1 S.C.R. 711 at 733, 90 D.L.R. (4th) 289 at 303, 135 N.R. 161 at 182, 16 Imm.L.R. (2d) 1 at 20.