Prata v. Minister of Manpower & Immigration, [1976] 1 SCR 376

Supreme Court of Canada

Prata v. Minister of Manpower & Immigration, [1976] 1 S.C.R. 376

Date: 1975-01-28

Vincenzo Prata Appellant;

and

Minister of Manpower and Immigration Respondent.

1974: October 18; 1975: January 28.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration—Deportation order—Discretionary power of the Immigration Appeal Board to stay execution of the order—Loss of this power in certain cases by the filing of a certificate signed by the Minister and the Solicitor General, based on the national interest—Whether subject of the order has the right to be heard before certificate is filed—Whether appellant was deprived of his right to equality before the law by the filing of this certificate—Whether he is subject to arbitrary detention, imprisonment or exile—Immigration Appeal Board Act, R.S.C. 1970, c. I-2, ss. 15, 21—Canadian Bill of Rights, ss. 1 (b), 2 (a), 2 (e).

A deportation order was made in respect of appellant, who was not a Canadian citizen, nor was he domiciled in Canada within the meaning of the Immigration Act. The latter appealed to the Immigration Appeal Board and also asked it to exercise its discretion under s. 15 of the Immigration Appeal Board Act. The appeal was dismissed, and, before this Court, the validity of the deportation order was not contested.

The Board refused the request to exercise its discretion under s. 15, holding that by virtue of the fact that a certificate had been filed by the Minister and the Solicitor General under the provisions of s. 21 of the Act, the Board had been stripped of jurisdiction to consider appellant’s appeal under the provisions of s. 15. An appeal was taken to the Federal Court of Appeal and was dismissed, with one dissenting judgment. Leave to appeal to this Court was granted by the Federal Court of Appeal. Appellant submitted that (1) the s. 21 certificate was invalid because he had not had any opportunity to be heard before it was made; and (2) the provisions of the Canadian Bill of Rights prevent the application of s. 21 in the circumstances of the case at bar.

Held: The appeal should be dismissed.

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In seeking to obtain the exercise by the Board of its discretionary powers under s. 15, the appellant is not asserting a right, but is attempting to obtain a discretionary privilege.

The Board’s discretion as defined in s. 15 is expressly limited by the provisions of s. 21, which forbid the Board to exercise its s. 15 discretionary powers if the appropriate certificate signed by the Minister of Manpower and Immigration and by the Solicitor General has been filed with it. Section 21 specifies that, based on security or intelligence reports which they receive, the two ministers may form an opinion that it would be contrary to the national interest for the Board to exercise a discretion in a particular case. It also provides that their certificate is conclusive proof of the matters stated in it. The section does not define the rights of persons subject to a deportation order. It deals with the jurisdiction of the Board to exercise a discretion. The purpose of the section excludes the suggestion that the two ministers may not formulate their opinion and certify it without first permitting the person affected to be heard. The Board had no option, upon the filing of the certificate, save to rule in the way in which it did.

With respect to the appellant’s contention that the application of s. 21 deprived him of the right to “equality before the law” declared by s. 1(b) of the Canadian Bill of Rights, because it did not apply equally to all persons seeking the exercise of the discretion provided by s. 15, s. 21 seeks to achieve a valid federal objective. Legislation dealing with a particular class of people is valid if enacted to achieve such an objective. With respect to the appellant’s contention that there had been an infringement of s. 2(e) of the Canadian Bill of Rights because he had been deprived of a fair hearing, the validity of the deportation order was not attacked, and there was no contention that it had not been made in accordance with the procedure laid down by the Immigration Act and the regulations. Similarly, there was no “arbitrary” detention, imprisonment or exile under s. 2(a) of the Canadian Bill of Rights because there was no attack upon the validity of the deportation order.

R. v. Governor of Pentonville Prison, [1973] 2 All. E.R. 741; R. v. Burnshine (1974), 44 D.L.R. (3d) 584, referred to.

APPEAL from a judgment of the Federal Court

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of Appeal[1], dismissing an appeal from a decision of the Immigration Appeal Board refusing to exercise its discretion under s. 15 of the Immigration Appeal Board Act. Appeal dismissed.

J.A. Hoolihan, Q.C., for the appellant.

N.A. Chalmers, Q.C., and E.A. Bowie, for the respondent.

The judgment of the Court was delivered by

MARTLAND J.—A deportation order was made in respect of the appellant on October 29, 1971. At that time he was not a Canadian citizen, nor was he domiciled in Canada within the requirements of s. 4 of the Immigration Act, R.S.C. 1970, c. I-2. He appealed against the order to the Immigration Appeal Board pursuant to the Immigration Appeal Board Act, R.S.C. 1970, c. I-3. This appeal failed. He did not, before this Court, contest the validity of the deportation order.

Section 15 of the Immigration Appeal Board Act gives to the Board certain defined discretionary powers in cases where an appeal against a deportation order has been dismissed. The portions of that section which are relevant to this appeal are the following:

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

…

(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,

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

The discretionary powers of the Board, are, however, made subject to an important limitation imposed by s. 21, the relevant portions of which provide:

SECURITY

21. (1) Notwithstanding anything in this Act, the Board shall not,

(a) in the exercise of its discretion under section 15, stay the execution of a deportation order or thereafter continue or renew the stay, quash a deportation order, or direct the grant of entry or landing to any person,

…

if a certificate signed by the Minister and the Solicitor General is filed with the Board stating that in their opinion, based upon security or criminal intelligence reports received and considered by them, it would be contrary to the national interest for the Board to take such action.

In the present case a certificate in compliance with s. 21 was filed with the Board. The Board held as follows:

With respect to the Board’s discretionary powers under Section 15, the Board finds that by virtue of the fact that a Certificate has been filed under the provision of Section 21 of the Immigration Appeal Board Act, the Board has been stripped of jurisdiction to consider the appellant’s appeal under the provisions of said Section 15 and, therefore directs that the Order be executed as soon as practicable.

An appeal was taken to the Federal Court of Appeal and was dismissed, with one dissenting judgment. Leave to appeal to this Court was granted by the Federal Court of Appeal.

In substance, counsel for the appellant makes two submissions in law:

1. That the s. 21, certificate was invalid because the appellant had not had any opportunity to be heard before it was made.

2. That the Canadian Bill of Rights prevents s. 21 from applying to preclude Prata from

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seeking to obtain the exercise by the Board of its discretionary powers under s. 15.

In considering whether the audi alteram partem rule can be invoked in the present case it is necessary to consider the following circumstances. The appellant is seeking to remain in Canada, but the deportation order, which is not now challenged, establishes that, in the absence of some special privilege existing, he has no right whatever to remain in Canada. He does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege.

The position of an alien, at common law, was briefly summarized by Lord Denning M.R. in the recent case of R. v. Governor of Pentonville Prison[2], at p. 747, as follows:

At common law no alien has any right to enter this country except by leave of the Crown; and the Crown can refuse leave without giving any reason: see Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149 at 168. If he comes by leave, the Crown can impose such conditions as it thinks fit, as to his length of stay, or otherwise. He has no right whatever to remain here. He is liable to be sent home to his own country at any time if, in the opinion of the Crown, his presence here is not conducive to the public good; and for this purpose, the executive may arrest him and put him on board a ship or aircraft bound for his own country: see R. v. Brixton Prison (Governor), ex parte Soblen [1963] 2 Q.B. 243 at 300, 301. The position of aliens at common law has since been covered by various regulations; but the principles remain the same.

The right of aliens to enter and remain in Canada is governed by the Immigration Act. That statute provides for the making of deportation orders, in the circumstances defined in the Act. Such an order was made with respect to the appellant and it is conceded that it was valid.

The Immigration Appeal Board Act provided for a right of appeal from a deportation order to the Board. Such an appeal was made in the present case and it was refused. The decision of the

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Board in respect of the appeal is not challenged. That Act, however, gave to the Board a limited and defined jurisdiction to exercise, in certain circumstances, a discretion to permit a person to remain in Canada despite the fact that a deportation order had been made against him. The Board’s discretion is defined in s. 15, but is expressly limited by the provisions of s. 21, which commences with the words “Notwithstanding anything in this Act, the Board shall not”, and which proceeds to forbid the Board from exercising its s. 15 discretionary powers if the appropriate certificate signed by the Minister of Manpower and Immigration and by the Solicitor General had been filed with it.

The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation order, would not be conducive to the public good. The certificate provided for in this section is a certificate of an opinion. It is not a decision on an issue, inter partes. Furthermore, the section defines the material upon which such opinion is to be based; i.e., security or intelligence reports received and considered by the two ministers. Based on that material they may form an opinion that it would be contrary to the national interest for the Board to exercise a discretion in a particular case. The section provides that their certificate is conclusive proof of the matters stated in it

In my opinion the purpose and the wording of s. 21 exclude the suggestion that the two miniters may not formulate their opinion and certify it without first permitting the person affected to be heard. Section 21 does not define the rights of persons subject to a deportation order. It deals with the jurisdiction of the Board and excludes fom its jurisdiction to grant compassionate relief to such persons, cases where the continued presence of such persons in Canada would, in the opinion of the Crown, be contrary to the national interest.

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I should further point out that the Board in the present case, upon the filing of the certificate, had no option, in view of the wording of s. 21, save to rule that it could not deal with the appellant’s request for relief under s. 15 in the way in which it did. I do not see how a statutory board, with a defined jurisdiction, would have any authority to declare invalid the certificate which had been filed with it. Control of the exercise of administrative powers, where it exists, does not rest with a statutory board, in the absence of express statutory power conferred upon it. I say this because in the present case the attack upon the action of the two ministers is made by way of an appeal from the Board’s decision on the ground that it was not precluded from exercising its s. 15 powers in this case.

In my opinion the appellant’s first submission fails.

The second ground of appeal is that the provisions of the Canadian Bill of Rights prevent the application of s. 21 in accordance with its terms, in the circumstances of the present case.

It is contended that the application of s. 21 has deprived the appellant of the right to “equality before the law” declared by s. 1(b) of the Canadian Bill of Rights. The effect of this contention is that Parliament could not exclude from the operation of s. 15 persons who the Crown considered should not, in the national interest, be permitted to remain in Canada, because such persons would thereby be treated differently from those who are permitted to apply to obtain the benefits of s. 15. The purpose of enacting s. 21 is clear and it seeks to achieve a valid federal objective. This Court has held that s. 1(b) of the Canadian Bill of Rights does not require that all federal statutes must apply to all individuals in the same manner. Legislation dealing with a particular class of people is valid if it is enacted for the purpose of achieving a valid federal objective (R. v. Burnshine)[3].

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In my opinion his submission fails.

Reliance is also placed on s. 2(a) and (e) of the Canadian Bill of Rights, which provide as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

(a) authorize or effect the arbitrary detention, imprisonment or exile of any person;

…

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

With respect to these submissions I would adopt the reasoning of Jackett C.J. in the Court below:

In considering the arguments of the appellant based on Canadian Bill of Rights, it is important to have in mind that everything of which the appellant feels aggrieved in this matter is the direct result of the deportation order. There is, however, no attack on the validity of the deportation order and there is no contention that that order was not made in accordance with the procedure laid down by the Immigration Act and Regulations for making such an order. Neither is there any contention that that procedure does not meet the requirements of “due process” contemplated by section 1(a) of the Canadian Bill of Rights or “the principles of fundamental justice” contemplated by section 2(e) of the Canadian Bill of Rights. To the extent, therefore, if any, that that deportation order has interfered with the appellant’s “life, liberty, security of the person or enjoyment of property” or has affected his “rights” or “obligations”, there has been no conflict with the requirements of section 2 of the Canadian Bill of Rights in relation to section 1(a) or section 2(e) thereof.

Furthermore, as there has been no attack on the validity of the deportation order or upon the manner in which it was made, there can be no question of the “arbitrary” detention, imprisonment or exile of the

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appellant within the meaning of section 2(a) of the Canadian Bill of Rights.

In the result, for the reasons given above, I would dismiss this appeal.

Appeal dismissed.

Solicitor for the appellant: John A. Hoolihan, Toronto.

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