8. CONFIDENTIALITY AND APPLICATIONS FOR PUBLIC HEARINGS
8. CONFIDENTIALITY AND APPLICATIONS FOR PUBLIC HEARINGS
8.1 INTRODUCTION
This chapter deals with the confidentiality of proceedings in the Refugee Division, including the question of whether the public will be allowed to attend the proceedings.
The Immigration Act recognizes that a claimant is entitled to a high level of privacy based on the need to protect the safety of the claimant and other persons. Thus, proceedings in the Refugee Division are conducted in camera (closed to the public), unless the procedures in the Act for having public proceedings are followed.
The Immigration Act also recognizes that "freedom of the press" is one of the "Fundamental Freedoms" mentioned in the Canadian Charter of Rights and Freedoms and that Canadians ordinarily enjoy the right to observe the workings of the judicial process.
It is the responsibility of the Refugee Division to assess these competing interests and to determine who may be allowed to observe Refugee Division proceedings, in accordance with the Immigration Act, subsections 69(2), (3), (3.1) and (3.2), and CRDD Rule 22.
8.2 BACKGROUND
The current confidentiality provisions in the Immigration Act came into force on February 1, 1993, as a result of amendments to the Act by Bill C-86 (S.C. 1992, c. 49). These amendments were a response to a series of Federal Court cases, culminating in Pacific Press Ltd. v. Canada (Minister of Employment of Immigration), [1991] 2 F.C. 327 (C.A.). Pacific Press held that the particular scheme (as it read before Bill C-86) for holding immigration inquiries in camera was unconstitutional: it was overinclusive because it imposed an impossible burden of proof on the member of the public seeking to open the hearing, and it did not provide alternatives, such as a publication ban.
Previously, a member of the public who wanted to attend a Refugee Division hearing was required to establish that the claimant or any member of the claimant's family "would not be adversely affected" if the proceedings were conducted in public. Under the current scheme, once an application for a public hearing is made, it is up to the claimant to establish that opening the proceedings to the public would result in a serious possibility that the life, liberty or security of any person would be endangered. Thus, the Act now puts the onus on the claimant to justify keeping the proceedings in camera, but it seeks to protect any person from harm, not just the claimant and the claimant's family.
Further, under the previous scheme, the Refugee Division only had the option of holding the proceedings in camera or open to the public. Under the current scheme, the Refugee Division has the additional option of taking measures or making orders to ensure the confidentiality of the proceedings. Such measures might include a publication ban on part of the proceedings.
(By contrast, for the Adjudication Division and the Immigration Appeal Division of the Immigration and Refugee Board, the general rule is that proceedings are conducted in public, unless the respective Division grants an application to ensure the confidentiality of the proceedings.)
8.3 PROCEDURES REGARDING APPLICATIONS FOR PUBLIC HEARINGS
Proceedings in the Refugee Division are to be conducted in camera, unless the criteria described below are met [ Immigration Act, s. 69(2)].
A member of the public, including a member of the media, may make an application to have Refugee Division proceedings conducted in public [ Immigration Act, s. 69(2)]. (Since there must an application for proceedings to be conducted in public, the Refugee Division has no power to order on its own that the proceedings in a particular case will be conducted in public.)
A person who makes an application pursuant to subsection 69(2) of the Act to have proceedings conducted in public is required to make the application in writing and file it at the registry [ CRDD Rule 22(1)].
The Refugee Division is required to notify the parties to the proceedings forthwith of the application [ CRDD Rule 22(2)].
The claimant, or any other person, may then apply to have the Refugee Division take such measure and make such order as the Refugee Division considers necessary to ensure the confidentiality of the proceedings [ Immigration Act, s. 69(3)].
The application that is made pursuant to subsection 69(3) to maintain an in camera hearing is to be made in writing and filed at the registry [ CRDD Rule 22(3)].
The Refugee Division is required to notify the person who applied to have the proceedings conducted in public, and every party, of the application to maintain an in camera hearing [ CRDD Rule 22(4)].
Where the Refugee Division considers it appropriate to do so, it may take such measures or make such order as it considers necessary to ensure the confidentiality of any hearing held into the application under subsection 69(3) to maintain an in camera hearing. [ Immigration Act, s. 69(3.1)].
Thus, the claimant may request that the applicant and counsel for the applicant be kept outside the hearing room during the claimant's arguments as to why the hearing ought to be held in camera. This provision helps ensure that the claimant is able to avoid the harm that might be caused by having to reveal the reasons why the claimant fears to have a public hearing.
The presiding member should explain the procedures and the issues that will be involved in assessing the application, including:
(1) that the applicant (member of the public) and counsel for the applicant can be required to wait outside during the claimant's arguments on whether a member of the public should be permitted to attend the hearing [
Immigration Act, s. 69(3.1)], and
(2) that the decision to open or close the proceedings will be made on the basis of whether the Refugee Division is satisfied that there is a serious possibility that the life, liberty or security of any person would be endangered by reason of any of its proceedings being held in public [ Immigration Act, s. 69(3)].
If an
adjournment to permit the claimant
to retain counsel is granted at a sitting,
the application for public access should not be heard at that sitting, as counsel for the claimant should be permitted to make arguments on the issue of public access. The presiding member should inform the applicant (member of the public) that the hearing has been adjourned for counsel, give notice of the time and place of the next sitting, and explain that the application will be heard at the next sitting.
Where there is any question regarding public knowledge of the name of the claimant, that name should not be used in the presence of the public prior to a decision of public access. For example, prior to the decision on public access, the media may only know the claimant as one of the group of four ship jumpers.
The panel may decide to exclude the applicant from the hearing room, but allow counsel for the applicant to remain. This should only be done where counsel for the applicant is a lawyer in good standing with a provincial bar association (and thus subject to discipline for any misconduct) and signs a written undertaking not to reveal to the applicant or anyone else any evidence adduced or information obtained during that part of the hearing, until a decision on public access has been rendered. The undertaking to keep the evidence and information confidential would remain in the event of a decision to proceed in camera.
Where both the applicant and the applicant's counsel are excluded during the claimant's arguments, the panel will listen to the claimant's reasons for wanting a closed hearing and then allow the applicant and counsel for the applicant to come into the room. The presiding member will then give them as full a statement of the representations made by the claimant as can be provided without providing any information that could adversely affect the claimant.
The applicant will then be permitted to make representations as to why the hearing should be open to the public.
Where the claimant does not request that the applicant be excluded during arguments, or where the request to have the applicant excluded during arguments is not granted,
- the claimant should be given the first opportunity to explain why there is a serious possibility that the life, liberty or security of any person would be endangered by reason of any of its proceedings being held in public
- the applicant from the public should then be given an opportunity to argue why the hearing should be open to the public
- the claimant should be given a final opportunity to reply to the arguments put forward by the applicant
The Refugee Division should inform both the member of the public who applied to attend a hearing and the claimant of its decision on public access.
8.4 SPECIAL TOPICS
8.4.1 IRB Members and Staff As Observers
IRB members and staff, including, legal advisers, refugee claim officers, supervisors, registrars and any other employees, are not considered to be "members of the public" and thus do not have to submit an application in order to attend a hearing. All IRB staff will maintain the confidentiality of the proceedings and therefore their presence will not ordinarily be of concern to the claimant. IRB observers should be prepared to give their names and description of their positions to the claimant as a courtesy.
The claimant may, on occasion, object to the presence of IRB observers. For example, counsel may state that the claimant is so nervous about testifying about torture, etc., that the presence of any unnecessary persons will interfere with the claimant's ability to testify fully. In the circumstances of a particular case, the Refugee Division may rule that it is necessary to exclude all persons who do not have a necessary role to play at that particular hearing. This ruling would be made on the basis that it is necessary to provide the claimant with a full opportunity to be heard.
8.4.2 Representative or Agent of the UNHCR
Despite the in camera provisions elsewhere in the Immigration Act, the Refugee Division is required to allow any representative or agent of the United Nations High Commissioner for Refugees (UNHCR) to attend the proceedings as an observer [ Immigration Act, s. 69(3.2)]. This permission must be granted even where the claimant objects to the presence of the representative of the UNHCR.
Anyone purporting to represent or be an agent for the UNHCR should be able to produce satisfactory identification to confirm the person's identity and status as UNHCR representative or agent.
In Montreal, Toronto and Vancouver, the UNHCR has full-time representatives who have their offices at the Immigration and Refugee Board.
8.4.3 Witnesses
The Refugee Division may, at the request of a party or of its own motion, exclude witnesses from a hearing until they are called to testify [ CRDD Rule 24].
No person may communicate to a witness who has been excluded pursuant to Rule 24(1), any evidence or testimony that this given during the course of a hearing until after the witness has testified [ CRDD Rule 24(2)].
The presence of a necessary witness does not mean that the proceedings are no longer in camera. As stated in Nechiporenko, Olga v. M.C.I.(F.C.T.D., no. IMM-4667-96), Gibson, August 18, 1997, reported: Nechiporenko v. Canada (Minister of Citizenship and Immigration (1997), 40 Imm. L.R. (2d) 180 (F.C.T.D.):
[15] …the statutory requirement for an in camera hearing was simply not breached. An in camera hearing does not equate to a hearing at which only the CRDD members, a Refugee Claim Officer, a translator and the applicant and her counsel are present. The presence of the Canadian citizen at the request of counsel for the applicant did not make the hearing otherwise than in camera. In The Queen v. C.B., [1981] 2 S.C.R. 480 (not cited before me), Mr. Justice Chouinard relied upon the following definition of in camera from Jowitt's Dictionary of English Law, 2nd edition,:
…when the judge either hears it in his private room, or causes the doors of the court to be closed and all persons, except those concerned in the case, to be excluded.
[16] Here, although no judge was involved but rather the CRDD, it was not alleged before me that any aspect of the applicant's hearing before the CRDD was conducted under circumstances other than circumstances in which all persons, except those concerned in the case, were excluded. The Canadian citizen who was a witness had amply demonstrated that he was a person concerned in the case, and as a witness, I am satisfied that such was the case.
8.5 CASE LAW ON PUBLIC ACCESS
There is some case law which interprets the public access provisions at immigration inquiries, as those provisions read before the 1993 amendments to the Act [ Immigration Act, ss. 29(2), (3)]. Those provisions deal with the same issues as the provisions regarding public access at Refugee Division hearings [ Immigration Act, ss. 69(2), (3)]. These cases should therefore be considered when issues of public access arise at the Refugee Division hearings.
In Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 419 (C.A.), the Federal Court of Appeal found that under subsection 29(3) of the Immigration Act, as it read at the time, the member of the public had the onus of establishing two negatives: that the conduct of the inquiry in public would not impede it and that neither the claimant nor any member of the claimant's family would be thereby adversely affected (page 422). Once it is shown, however, that the application is from the media, (whose right of access to judicial or quasi-judicial proceedings is based on section 2(b) of the Charter, "freedom of the press") the onus shifts to the claimant to produce some evidence to show the harm that a public hearing might cause. The Court held (at pages 423-24) that the adjudicator erred by not receiving sufficient evidence to justify a decision to hold an in camera inquiry and by not finding a way to hold in camera the hearing into the application for public access:
[The Adjudicator's] reason for holding the inquiry
in camera was based solely on undisputed submissions, not evidence, to the effect that McVey's wife, resident somewhere in the United States, "is suffering from terminal cancer and that the publicity issuing from an inquiry may have a severe adverse affect on her". Nothing was said of other measures that might reasonably be taken to deny her access to the publicity. In my opinion, that provided no proper basis for an exercise of discretion to close the inquiry. 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. The Adjudicator erred in law in making the order he did without evidence to support it.
The problem faced by the Adjudicator arose directly out of his refusal to conduct in camera the proceedings on the applicants' request that the inquiry be open. As a result of that, McVey refused to lead evidence. On the assumption that in camera proceedings in an inquiry under the Immigration Act may be justified notwithstanding paragraph 2(b) of the Charter, it seems obvious that the person seeking to exclude the press ought to be afforded the opportunity to present the necessary supporting evidence under conditions that will prevent its disclosure and publication. Experienced counsel will be able to suggest a variety of acceptable measures to maintain confidentiality while allowing the evidence to be tested by adverse interests.
involved an unusual fact situation in that it was alleged that the publicity itself would cause harm to a family member. In the more usual situation, it is alleged that a foreign government or other agent of persecution would take action against family members as a result of the claimant's testimony. In any event, the Federal Court indicated that a mere assertion by the claimant of possible harm would not be enough - some kind of evidence would be needed. The Court suggested that there ought to be some way of protecting the claimant during the hearing of the application.
In Toronto Star Newspapers Ltd. v. Kenney, [1990] 1 F.C. 425 (T.D.), the Trial Division of the Federal Court also examined subsection 29(3) of the Act. The Trial Division agreed that to apply the literal meaning of subsection 29(3) and put the burden of proof fully on the applicant would be to put the applicant in the impossible position of having to prove two negative statements. The Trial Division would have found subsection 29(3) to be unconstitutional if it were to be applied in that manner, but the Trial Division found (at p. 445) that it was bound to follow the Federal Court of Appeal decision in Pacific Press, which had held with respect to burden of proof:
… 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 that slight burden and shift the onus to the person seeking to exclude the press.
The Trial Division therefore found the public access provisions to be constitutionally valid, that is, not contrary to the
Charter. The Court stated at pages 445 - 46:
Given that interpretation of subsection 29(3) of the Act it is my view that the constitutional balance between the right of access to the hearing and the protection of the rights of the refugee claimant have been maintained by the restoration of a real discretion in the Adjudicator to determine on a case-by-case basis and on the particular circumstances of each case whether or not the credible basis hearing should be held in camera or conducted in public. So long as s. 29(3) is applied in that manner I can see no reason for finding it to be unconstitutional.
It is interesting to note that in order to understand the purpose and effect of subsection 29(3) of the Act, the Federal Court, in
Toronto Star, reviewed statements made in April 1985 to the Parliamentary Committee studying the then proposed amendments to subsection 29(3).
It is also interesting to note the Federal Court's comments in Toronto Star with respect to "absolute confidentiality" (at p. 443):
If, as in some other free and democratic societies, the refugee-claimant screening process is done on an administrative basis then it is true that the fact of the application and the identity of the person making the application can, and according to some letters from the representatives of those countries in the record of the Attorney General of Canada, be and is kept confidential. On the other hand when the screening process is in the nature of a judicial procedure it seems almost a contradiction in terms to suggest that both the fact of the application and the identity of the refugee claimant will, by reason of section 29, be kept confidential. Subsection 29(3) contemplates applications by the public to have credible basis hearings conducted in public. In order for a member of the public to be able to exercise the right to apply to have the hearing conducted in public both the fact of the application and the refugee claimant's identity would have to have been given some publicity.
Perhaps, if Parliament wants to achieve the goal of total confidentiality, it should remove the credible basis hearing from the judicial process and instead, as some other nations have done, relegate it to the administrative side. However so long as the hearings form a part of the judicial process they must be subject to constitutional scrutiny on that basis.
In
Gervasoni v. Canada (M.C.I.), [1995] 3
F.C. 139 (T.D.), the applicant's inquiry was resumed at a correctional institution. At the outset, counsel advised the adjudicator that certain people who wanted to attend had not been permitted to do so. The adjudicator stated: institution staff had advised that persons were interested in attending, but none had been admitted because there had been insufficient time to perform security checks; he had informed institution staff that inquiries are open to the public, and he had no objection to the persons' attendance; it was for staff to decide whether persons would be admitted to the institution. Rejecting suggestions by counsel, the adjudicator declined to hear from the would-be attenders, or to move the inquiry to another venue. According to the Court, the requirement in section 29(1) of the Act that the inquiry be "conducted in public" was not met in this case. It was met neither by the mere absence of an order to exclude the public, nor by the adjudicator's affirmation that he had no objection to attendance. In section 29(1) of the Act, the public-inquiry requirement is not covered by the modifier "wherever practicable", or by the provision for written consent to alternative arrangements. The accepted purposes of an "open court" do not require unreasonable measures, but the Court had no evidence as to the reasonableness of the measures for screening attenders. If the security considerations of the institution were apparently reasonable for its purposes but effectively excluded the public from all inquiries, those would not be reasonable requirements and it would be improper for the Minister to schedule an inquiry within the institution. No unfairness to the applicant had been alleged; nevertheless, the Court noted that the public-inquiry requirement was mandatory (except, conceivably, for the existence of a narrow discretion), and held that the adjudicator had exceeded his jurisdiction when he proceeded.
The principles in Gervasoni would likely also apply to a Refugee Division hearing held at an institution, if the hearing were one of those few Refugee Division hearings that are not held in camera.
Appendix 8A - Immigration Act, ss. 69(2),(3), (3.1) and (3.2)
Confidentiality
(2) Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall be held in the presence of the person who is the subject of the proceedings, wherever practicable, and be conducted in camera or, if an application therefor is made, in public.
Idem
(3) Where the Refugee Division is satisfied that there is a serious possibility that the life, liberty or security of any person would be endangered by reason of any of its proceedings being held in public, it may, on application therefor, take such measures and make such order as it considers necessary to ensure the confidentiality of the proceedings.
Idem
(3.1) Where the Refugee Division considers it appropriate to do so, it may take such measures and make such order as it considers necessary to ensure the confidentiality of any hearing held in respect of any application referred to in subsection (3).
United Nations
High Commissioner
for Refugees
(3.2) Notwithstanding subsection (2) or any measure taken or order made pursuant to subsection (3) or (3.1), the Refugee Division shall allow any representative or agent of the United Nations High Commissioner for Refugees to attend any proceedings before it as an observer.
Appendix 8B - CRDD Rule 22
Applications for Public Hearings and Confidentiality
22. (1) A person who makes an application pursuant to subsection 69(2) of the Act shall do so in writing to the Refugee Division and shall file it at the registry.
(2) The Refugee Division shall notify the parties forthwith of the application referred to in subrule (1).
(3) An application that is made pursuant to subsection 69(3) of the Act in response to an application referred to in subrule (1) shall be made to the Refugee Division in writing and filed at the registry.
(4) Subject to any measure taken or any order made pursuant to subsection 69(3.1) of the Act, the Refugee Division shall notify the person referred to in subrule (1) and every party forthwith of the application referred to in subrule (3).
Appendix 8C - Selected Case Law
- Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 (T.D.) (media's right to attend adjudication detention reviews)
- Hothi v. R., [1986] 3 W.W.R. 671 (Man. C.A.) (witness not allowed to bring kirpan [ceremonial dagger] into courtroom)
- Dhaliwal, Gurminder Kaur v. M.E.I., (IAB 85-6155), Wlodyka, Mawani, Howard, Oct. 30, 1986 (witness not allowed kirpan/ R.v. Hothi applied)
- C.B.C. v. Quebec Police Commission, [1979] 2 S.C.R. 618 (Commission not having the power to punish CBC for broadcasting pictures of the subject of the proceedings)
- Re Southam Inc. and the Queen (no. 1) (1983), 41 O.R. (2d) 113 (C.A.) (mandatory in camera hearings under Juvenile Delinquents Act infringed on freedom of the press)
- Southam Inc. v. M.E.I. (F.C.T.D., no. T-479-89), Jerome, April 28, 1989. Reported: Southam Inc. v. Canada (Minister of Employment and Immigration), (1989), Imm. L.R. (2d) 12 (F.C.T.D.) (Section 29 of Immigration Act puts onus on member of public to show why inquiry should be open to public.)
- Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 419 (C.A.) (Onus under s. 29(3) is on member of public but shifts easily to claimant; evidence of "adverse effects" needed.)
- Toronto Star Newspapers Ltd. v. Kenney, [1990] 1 F.C. 425 (T.D.) (Subsection 29(3) is constitutional; Pacific Press applied.)
- Nechiporenko, Olga v. M.C.I. (F.C.T.D., no. IMM-4667-96), Gibson, August 18, 1997. Reported: Nechiporenko v. Canada (Minister of Citizenship and Immigration (1997), 40 Imm. L.R. (2d) 180 (F.C.T.D.) (Although counsel argued s. 69(2) was breached when the CRDD or CIC disclosed the hearing date to the citizen, the Court held: (i) there was no evidence the letter campaign would not have had the same effect if the citizen had been unaware of a specific scheduled hearing date; and (ii) the presence of the citizen at the hearing did not make the hearing otherwise than in camera.)
- Gervasoni v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 189 (T.D.) (the applicant's inquiry was resumed at a correctional institution. Persons interested in attending had not been admitted because there had been insufficient time to perform security checks. Court held that the s. 29(1) requirement that the inquiry be "conducted in public" was not met. If the security considerations of the institution were apparently reasonable for its purposes but effectively excluded the public from all inquiries, it would be improper for the Minister to schedule an inquiry within the institution. No unfairness to the applicant had been alleged; nevertheless, the Court noted that the public-inquiry requirement was mandatory (except, conceivably, for the existence of a narrow discretion), and held that the adjudicator had exceeded his jurisdiction when he proceeded.)
- Edmonton Journal v. IRB (CRDD) and M.C.I. (F.C.T.D. nos. IMM-677-95 and IMM-510-95), Jerome, January 26, 1996 (Questions certified: November 8, 1996) (Court found that the CRDD order of March 14, 1995 (which basically allowed the reporter to attend proceedings but not to report on anything that could identify the claimant) did not conflict with Dagenais v. C.B.C., [1994] 3 S.C.R. 835. Any publicity could endanger the claimant due to her sensitive situation. The publication ban by the CRDD was appropriate and proportional to the threat faced by the claimant.)