Boulis v. Minister of Manpower and Immigration, [1974] SCR 875

Supreme Court of Canada

Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875

Date: 1972-03-30

Konstantinos Boulis Appellant;

and

The Minister of Manpower and Immigration Respondent.

1972: March 13, 14; 1972: March 30.

Present: Abbott, Judson, Ritchie, Pigeon and Laskin JJ.

ON APPEAL FROM THE IMMIGRATION APPEAL BOARD

Immigration—Deportation order—Appeal dismissed by Immigration Appeal Board—Discretionary power of the Board—Weight given to the evidence by the Board—Meaning of the words “on an appeal”—Jurisdiction of the Supreme Court—Immigration Appeal Board Act, R.S.C. 1970, c. I-3, ss. 11, 14, 15(1) and 23(1).

Appellant was a Greek national who entered Canada by jumping ship, was arrested and subjected to a special inquiry, and was ordered to be deported. His appeal to the Immigration Appeal Board, asking it to exercise its exceptional jurisdiction under s. 15(1)(b)(i) and (ii) of the Immigration Appeal Board Act, was dismissed despite evidence tending to prove the existence of reasonable grounds for believing that deporting him to Greece would expose him to punishment for activities of a political character engaged in during his stay in Canada. Hence the appeal to this Court.

Held: The appeal should be dismissed.

Per Abbott, Judson and Ritchie JJ.: The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise. The Board made no error in law in refusing to exercise in favour of the appellant the discretion given to it under s. 15 of the Immigration Appeal Board Act.

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Per Pigeon and Laskin JJ.: The provisions of the Act that are material to the disposition of this appeal are ss. 11, 14, 15(1) and 23(1).

The decision of the Board on the application of s. 15(1), after dismissing an appeal from a deportation order, is as much a decision “on an appeal” as its affirmation of a deportation order. The words “on an appeal” mean “in the course of an appeal”, and point to the entire course of the proceedings. This Court is not excluded from the scheme of review of which it is a part by its leave, save only that there must be a question of law, including a question of jurisdiction, involved.

The Board must not disregard credible evidence offered to prove the existence of reasonable grounds for believing that if execution of the deportation order is carried out the person concerned will be punished for activities of a political character or will suffer unusual hardship. However, this Court’s appellate jurisdiction in relation to a decision of the Board under s. 15(1)(b)(i) does not extend to the point of interference with the weight assigned by the Board to evidence where, either taken by itself or in relation to conflicting or modifying evidence, the Board must decide on its force in meeting the standards fixed by s. 15(1)(b)(i). The Parliament of Canada has made it clear that the granting of asylum should not rest on random or arbitrary discretion under s. 15(1)(b)(i), but rather that a claim to the Board’s favourable interference may be realized through evidence upon the relevance and cogency of which the Board is to pronounce as a judicial tribunal.

APPEAL from a decision of the Immigration Appeal Board, dismissing an appeal from a deportation order. Appeal dismissed.

F.A. Brewin, Q.C., and W. Fox, for the appellant.

S.F. Froomkin, for the respondent.

The judgment of Abbott, Judson and Ritchie JJ. was delivered by

ABBOTT J.—The facts and the relevant provisions of the Immigration Appeal Board Act are set out in the reasons of my brother Laskin. As he has stated, the validity of the deportation order made against appellant was not contested

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on the appeal to the Immigration Appeal Board, which was asked to exercise its exceptional jurisdiction under s. 15 of the said Act. That section gives the Board broad discretionary powers to allow a person to remain in Canada who is inadmissible under the Immigration Act. Before the section was enacted, such power was vested solely in the executive branch of government.

I agree with my brother Laskin that this Court has jurisdiction to entertain such an appeal. Indeed it did so recently in Grillas v. The Minister of Manpower and Immigration decided on December 20, 1971 (as yet unreported), although the grounds of law urged on that appeal were not the same as those put forward here.

In my opinion however, such an appeal can succeed only if it be shown that the Board (a) has refused to exercise its jurisdiction or (b) failed to exercise the discretion given under s. 15 in accordance with well established legal principles. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D.R. Fraser and Co. Ltd. v. Minister of National Revenue[1], at p. 36:

The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.

In my opinion, the Board made no error in law in refusing to exercise in favour of the appellant the discretion given to it under s. 15 of the Immigration Appeal Board Act.

I would dismiss the appeal.

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The judgment of Pigeon and Laskin JJ. was delivered by

LASKIN J.—The appellant Konstantinos Boulis, who entered Canada when age 19 by jumping ship in Halifax on February 2, 1968, was ordered to be deported after having been arrested on April 1, 1969, and then subjected to a special inquiry on April 3, 1969. His appeal to the Immigration Appeal Board was dismissed on June 16, 1970, and the order of the Board, dated June 22, 1970, directed that the deportation order be executed as soon as practicable.

The validity of the deportation order was not contested on the appeal to the Board, which was asked rather to exercise its exceptional jurisdiction under s. 15(1), and in particular s. 15(1)(b)(i)(ii) of the Immigration Appeal Board Act, now R.S.C. 1970, c. I-3. The Board concluded in its written reasons that there were no grounds shown to warrant recourse in favour of the appellant to any of the remedies open under s. 15(1). Leave to appeal to this Court, subject to its jurisdiction to entertain the appeal, was given on the following question:

Did the Board err in law in declining to exercise its jurisdiction under s. 15(1)(b)(i) of the Immigration Appeal Board Act in favour of the applicant?

The provisions of the Act that are material to the disposition of this appeal, are ss. 11, 14, 15(1) and 23(1), and they read as follows:

11. A person against whom an order of deportation has been made under the provisions of the Immigration Act may appeal to the Board on any ground of appeal that involves a question of law or fact or mixed law and fact.

14. The Board may dispose of an appeal under section 11 or section 12 by

(a) allowing it;

(b) dismissing it; or

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(c) rendering the decision and making the order that the Special Inquiry Officer who presided at the hearing should have rendered and made.

15. (1) Where the Board dismisses an appeal against an order of deportation or makes an order of deportation pursuant to paragraph (c) of section 14, it shall direct that the order be executed as soon as practicable, except that

(a) in the case of a person who was a permanent resident at the time of the making of the order of deportation, having regard to all the circumstances of the case, or

(b) in the case of a person who was not a permanent resident at the time of the making of the order of deportation, having regard to

(i) the existence of reasonable grounds for believing that if execution of the order is carried out the person concerned will be punished for activities of a political character or will suffer unusual hardship, or

(ii) the existence of compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief,

the Board may direct that the execution of the order of deportation be stayed, or may quash the order or quash the order and direct the grant of entry or landing to the person against whom the order was made.

23. (1) An appeal lies to the Supreme Court of Canada on any question of law, including a question of jurisdiction, from a decision of the Board on an appeal under this Act if leave to appeal is granted by that Court within fifteen days after the decision appealed from is pronounced or within such extended time as a judge of that Court may, for special reasons, allow.

Dealing first with the respondent’s contention that this Court has no jurisdiction under s. 23(1) to entertain an appeal, even on a question of law, from the Board’s refusal to act under s. 15(1)(b)(i), the submission is that a decision of the Board under s. 15(1) is not “a decision of the Board on an appeal under this Act”, within s. 23(1). It is said that s. 14 alone indicates what is meant by a decision of the Board on an appeal; that since s. 15(1) comes into play only if the Board dismisses an appeal from a deportation order or itself makes a deportation order, it

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stands outside of the appellate jurisdiction confided to this Court; and this being so, the Board’s deportation decision on an appeal circumscribes the matters that can go forward to this Court under s. 23(1).

I regard these submissions as putting too narrow a construction on the statutory jurisdiction of this Court. Section 15(1) confers upon the Board an exceptional jurisdiction associated with any appeal taken to it from a deportation order (or, indeed, with any appeal from the refusal to make a deportation order: see s. 12). The decision of the Board, after dismissing an appeal from a deportation order, on the application of s. 15(1) is as much a decision “on an appeal” as its affirmation of a deportation order. I see no reason to read the words “on an appeal” as if they included by extension the words “from a deportation order” or “from the refusal to make a deportation order”. The words “on an appeal” are more easily susceptible of being read to mean “in the course of an appeal” or “on the hearing of an appeal”, and point as much to the entire course of proceedings as to the narrower issue of the competency of a deportation order per se. I prefer the wider view which does not exclude this Court from the scheme of review of which it is a part by its leave, limited only by the requirement that there be a question of law, including a question of jurisdiction, involved.

Turning to the merits, counsel for the appellant made three points on the construction of s. 15(1)(b)(i), to which alone he limited his argument. First, it was his submission that since the Board is a judicial body, indeed, a court of record, under s. 7 of its constituent statute, it was obliged to give objective consideration to “the existence of reasonable grounds for believing” in the stated consequences that would ensue if the deportation order was executed. Second, it was his contention that if the evi-

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dence showed such reasonable grounds of belief to exist, the Board was required to exercise its remedial authority. Third, he asserted that in these circumstances the only discretion in the Board was as to which of the remedies to apply, that is, a stay of execution of the deportation order or the quashing thereof or quashing and concurrently granting entry or landing to the person affected. The last-mentioned remedy is the one the Board granted in the recent case of Daniolos v. Minister of Manpower and Immigration, decided on November 10, 1971, reasons being delivered on December 14, 1971. There it accepted and acted upon evidence that showed that the appellant, a 19-year old Greek citizen who was a member of Jehovah’s Witnesses and a conscientious objector, and who jumped ship, was subject to military draft in Greece which did not recognize exemption on religious grounds, and that his refusal to be inducted would subject him to recurring terms of imprisonment upon each refusal until he reached the exemption age 50, and possibly to a death penalty if the country was at war or under emergency martial law as was then the case. The Board held that the evidence adduced to this effect, which was not challenged, brought the case within the provisions of s. 15(1)(b)(i) as to unusual hardship.

In support of the view of s. 15(1)(b)(i) which he advanced, counsel for the appellant contrasted the terms of s. 15(1)(b)(ii) which contain the qualifying phrase “in the opinion of the Board”. He also asked the Court to note that s. 15(1)(b) is the only provision of Canadian immigration law dealing with political refugees, and hence should receive a liberal interpretation in favour of sanctuary.

I do not disagree with the submission that the Board must not disregard credible evidence offered to prove “the existence of reasonable grounds for believing that if execution of the [deportation] order is carried out the person

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concerned will be punished for activities of a political character or will suffer unusual hardship”. This is all that the Board is required to have regard to under s. 15(1)(b)(i); in contrast, s. 15(1)(a) says simply that it have regard to all the circumstances in deciding upon the remedies prescribed, to which I have already alluded. But to treat s. 15(1)(b)(i) as pointing to an objective test of its provisions is not to foreclose the duty of the Board to weigh the evidence after it first decides that it is relevant and credible. On this view, the question that remains in this case is whether the Board erred in its assessment of the evidence, either by misstating or misunderstanding it or ignoring relevant portions thereof, to such a degree as to make its conclusion one that is not supportable on the evidence. I do not think that this Court’s appellate jurisdiction in relation to a decision of the Board under s. 15(1)(b)(i) should be extended to the point of interference with the weight assigned by the Board to evidence where, either taken by itself or in relation to conflicting or modifying evidence, the Board must decide on its force in meeting the standards fixed by s. 15(1)(b)(i).

Evidence was led in this case on the appeal to the Board to show that the appellant was an opponent of the present regime in Greece, that he was a member of a youth organization that supported the opposition Papandreou group, that he had been called up for military service in Greece while he was in Canada, that he took part in two public political meetings in Toronto addressed by Andreas Papandreou, that he believed he was photographed by representatives of the present regime in Greece while carrying a placard at a Papandreou meeting in Toronto, and that he would face a court martial if he was returned to Greece because of failure to answer his military call-up, with a certain penalty of two years’ imprisonment and possibly harsher treatment, not excluding torture, because of anti‑government activities abroad.

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Evidence on this last-mentioned point was given by a Canadian citizen of Greek origin who had been in Canada since 1955, had been a Greek army officer and was for some ten years executive secretary of a Greek community organization in Toronto and was also a Papandreou supporter. He asserted that the present Greek regime, which he described as ruthless and brutal, had a representative organization in Toronto which engaged in intimidation, and whose activities included the sending of names and photographs to Greece of persons of Greek origin who opposed the regime. The intimation was that newspaper pictures of the Papandreou meeting at which the appellant carried a placard were sent to Greece.

I have highlighted in this recital the portions of the evidence that were directed to show the existence of reasonable grounds for believing that deportation of the appellant to Greece would subject him to punishment for activities of a political character. In the main, reliance was put on activities in Toronto because it appears that the appellant was abroad as a seaman when the present Greek regime took power, and on his return to Greece he was inactive politically. There was evidence that the appellant had proved himself to be hard‑working and enterprising since his illegal entry into Canada.

The appellant was cross-examined by counsel for the respondent and his supporting witness was examined further by the Chairman of the Board. Counsel for the respondent in addressing the Board pointed out that the appellant did not seek political asylum but was in fact arrested.

The Board’s reasons for refusing to exercise its statutory power under s. 15(1)(b)(i) were attacked in this Court on three grounds. It was said, first, that the Board erred and introduced an extraneous consideration in stating that “at no time during the [Special] Inquiry did the

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appellant give any evidence which had any relevance to political persecution”. The contention was that such evidence would be immaterial at a special inquiry since the officer holding it had no such exceptional jurisdiction as is conferred upon the Board by s. 15(1)(b). It appears, however, that the Board spoke as it did after referring to evidence given by the appellant at the special inquiry that he did not report to an immigration officer because he was afraid; and he was then asked why he was afraid, but made no answer.

The second ground of attack was that the Board ignored the evidence of the supporting witness. I do not so read its reasons. It is clear that the Board considered that evidence but did not give equal weight to all the expressions of opinion of what would likely happen to the appellant if he was returned to Greece. It was on the basis of that evidence that the following appears in the Board’s reasons:

The Board is aware that the appellant will serve extra time in the army for avoiding his draft illegally and for having broken a seaman’s contract. An obligation on the part of the person concerned to undertake military service on behalf of the country of which he is a citizen is not a ground, so far as the appellant is concerned, for the exercise of the Board’s equitable jurisdiction under Section 15(1)(b)(i) or (ii).

The third submission in relation to the Board’s reasons was that it gave no weight to the political activities of the appellant in Toronto in opposition to the Greek regime. These activities as related in the evidence were mentioned by the Board in its reasons, and I cannot conclude that the Board simply ignored them. More likely the Board did not consider them to be of such a character as alone or in association with the other evidence would give reasonable ground for believing that the appellant, because of such activities, “will be punished” or “will suffer unusual hardship” if returned to Greece.

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Parliament has imposed an onerous as well as sensitive duty on the Board to deal with claims for political asylum and to apply compassionate or humanitarian consideration to claims of lawful entry to Canada. The judicialization of power to grant entry in such cases necessarily involves the Board in difficult questions of assessing evidence, because its judgment on the reasonableness of grounds of belief that a deportee will be punished for political activities or will suffer unusual hardship (the italics are mine) if the deportation is carried out, involves it in estimating the policies and reactions of foreign governmental authorities in relation to their nationals who claim asylum in Canada when unable to establish a claim to entry under the regular prescriptions. The Parliament of Canada has made it clear, in my opinion, that the granting of asylum should rest not on random or arbitrary discretion under s. 15(1)(b)(i) but rather that a claim to the Board’s favourable interference may be realized through evidence upon the relevance and cogency of which the Board is to pronounce as a judicial tribunal. The Board has thus been charged with a responsibility which has heretofore been an executive one. The right of appeal to this Court is proof enough that the carrying out of this responsibility was not to be unsupervised. At the same time, the Board must be accorded the trust in its careful and fair dealing with the cases that come before it for s. 15(1)(b) relief that its status as an independent court of record demands. Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised by s. 15(1)(b) and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board’s conclusions.

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Argument was addressed to this Court on the inapplicability of the principles of the majority in Liversidge v. Anderson[2]; and the notable dissent of Lord Atkin as well as the reception of Liversidge v. Anderson in later English cases were brought to this Court’s attention. It is, of course, clear that the present case, governed as it is by a statute of a different order, does not call upon the Court to stand between a subject and the executive. It is rather a Court to which the high matter of provileged entry to Canada for permanent residence is committed, and it is enough to make this distinction from Liversidge v. Anderson without embarking on an examination of its foundations.

I do not find any error in the present case to warrant this Court in interfering with the Board’s refusal to act in favour of the appellant under s. 15(1)(b)(i). I would, accordingly, dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Fox & Berg, Toronto.

Solicitor for the respondent: D.S. Maxwell, Ottawa.