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13. THE CHARTER/THE BILL OF RIGHTS 13. THE CHARTER/THE BILL OF RIGHTS

13.1 INTRODUCTION

This chapter contains an explanation of the enactment of the Canadian Charter of Rights and Freedoms and an analysis of whether Refugee Division members may apply the Charter to matters that come before them.

The Canadian Bill of Rights must also be considered in interpreting the Immigration Act and in adopting administrative procedures. A brief overview of the Bill of Rights is also provided.

The courts have not yet given a definitive answer whether the Refugee Division has the authority to decide Charter issues, but a number of decisions involving tribunals similar in structure to the Refugee Division have held that those tribunals do have the power to apply the Charter.

Until a court rules otherwise, Refugee Division members may reasonably take the position that they have the authority to apply the Charter (1) under section 52 of the Constitution Act, 1982, on the basis that any law that is inconsistent with the Charter is invalid, and (2) if necessary, under section 24 of the Charter, on the basis that the Division is a "court of competent jurisdiction" which can provide a remedy to a breach of the Charter.

13.2 THE ENACTMENT OF THE CHARTER

The Canadian Charter of Rights and Freedoms (the Charter) came into force on April 17, 1982. Section 15 of the Charter dealing with Equality Rights came into force three years later, on April 17, 1985, in order to allow the federal and provincial governments time to amend existing legislation.

The Parliament of the United Kingdom, at the request of the Parliament of Canada, passed the Canada Act 1982 (U.K.). This Act ended the power of the Parliament of the United Kingdom to pass laws pertaining to Canada and it included, as its "Schedule A", the French version of the Constitution Act, 1982, and as its "Schedule B", the English version of the Constitution Act, 1982. The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982.

The Constitution Act, 1982 is now the law in Canada. It consists of seven parts plus a schedule. The Constitution Act, 1982 is made up as follows:

 

 

Subsection 52(2) of the Constitution Act, 1982 states that the Constitution of Canada includes that Act and various other Acts. The Charter, being Part I of the Constitution Act, 1982, is therefore part of the Constitution of Canada.

Please note that it is technically incorrect to refer to "section 52 of the Charter." The Charter is made up of the first 34 sections of the Constitution Act, 1982. "Section 52" is found in Part VII of the Constitution Act, 1982. It is properly referred to as "section 52 of the Constitution Act, 1982."

Subsection 52(1) of the Constitution Act, 1982 reads:

Thus, any law of Canada (or part of any law) that is inconsistent with the Charter or any other part of the Constitution is invalid.

In addition, subsection 24(1) of the Charter provides:

 

Thus, unlike the Canadian Bill of Rights, the Charter specifically provides that a person whose rights under the Charter have been violated may apply to a court of competent jurisdiction to obtain a remedy.

Only tentative statements about the Refugee Division's authority to decide Charter issues may be given at this time: the courts have not yet definitively settled the question of which particular courts or tribunals may use the Charter to find legislation to be invalid or to grant remedies where a right under the Charter has been infringed. Furthermore, there is disagreement over what constitutes merely striking down a provision under subsection 52(1) and what constitutes providing a remedy under subsection 24(1).

13.3 THE SINGH DECISION

In Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 (often called "the Singh decision"), the Supreme Court of Canada made a number of important statements about the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

The case examined the refugee determination system of the day. At that time, a claimant could make a claim at any time during the course of an inquiry before an immigration adjudicator. The adjudicator then continued with the inquiry, without assessing the claim in any way, and if the adjudicator determined that, but for the claim, a removal order or departure notice would be issued, the inquiry was adjourned without a removal order or departure notice being issued.

The claimant was then examined under oath before a senior immigration officer (SIO). The examination was of a non-adversarial nature, with the SIO merely facilitating the process. The claimant had the right to be represented by counsel, and interpreters were provided, where necessary.

A transcript of the examination under oath was sent to the Minister of Employment and Immigration for a determination of the claim. The Minister was required to refer the claim and the transcript of the examination under oath to the Refugee Status Advisory Committee (RSAC) for study. RSAC then made a recommendation to the Minister (which was normally accepted) based on its review of the transcript and any other materials it had. Neither RSAC nor the Minister were required to meet the claimant in person.

If the Minister rejected the claim, the claimant could apply to the Immigration Appeal Board (IAB) for a "redetermination" of the claim. The application for redetermination was accompanied by the transcript of the examination under oath and also by a "declaration under oath" by the claimant setting out the basis for the claim, the facts, and the evidence intended to be offered at the hearing.

The IAB then considered the application. Where it was "of the opinion that there [were] reasonable grounds to believe that a claim could, upon the hearing of the application, be established", the IAB would allow an oral hearing to be held on the application for redetermination. Otherwise, it would reject the application without an oral hearing and thereupon determine that the claimant was not a Convention refugee. Case law established that to be entitled to an oral hearing the claimant's application had to establish the "probability" of success at the hearing.

The Singh decision was rendered April 4, 1985. Dickson C.J. and Lamer and Wilson JJ. decided the case on the basis of the Charter. Beetz, Estey and McIntyre JJ. decided the case on the basis of the Bill of Rights. The two approaches are compatible, not contradictory, and both are authoritative.

The Charter Approach

The reasons of Wilson J. (Dickson C.J. and Lamer J. concurring) included the following points.

Section 7 of the Charter provides:

The term "everyone" in section 7 of the Charter includes every person physically present in Canada [page 202]. Refugee claimants, therefore, are entitled to the rights and freedoms set out in section 7 and elsewhere in the Charter. (By contrast, section 3 of the Charter refers to "Every citizen of Canada", and subsection 6(2) refers to "Every citizen of Canada and every person who has the status of a permanent resident of Canada".)

The phrase "security of the person" in section 7 of the Charter encompasses freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself [page 207]. The claimants were entitled to fundamental justice in the adjudication of their claims because of the potential consequences for them if they do in fact have a "well-founded fear of persecution" [page 210].

As section 7 of the Charter allows "security of the person" to be violated if it is done in accordance with the principles of fundamental justice, the judgment then examined whether the refugee determination procedures met the test of providing procedural fairness ("fundamental justice"). It was acknowledged that the absence of an oral hearing need not be inconsistent with fundamental justice in every case [page 214] but the Court stated at pages 213-14:

The greatest concern with the scheme in the Act was with the lack of opportunity of the claimant to know the Minister's case against the claimant, except for the rudimentary reasons which the Minister decided to give in rejecting the claim [pp. 214-16].

Once a provision in a law has been found to contravene one of the rights and freedoms set out in the Charter, it becomes necessary to determine whether that provision might nevertheless still be valid because of section 1 of the Charter. Section 1 of the Charter provides that the rights and freedoms set out in the Charter are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

With respect to deciding what are the "reasonable limits" to the rights and freedoms guaranteed by the Charter, the Court found that "administrative convenience" was not a proper factor. The Court stated at page 218:

 

Having found that the refugee determination procedures violated section 7 of the Charter and could not be saved under section 1 of the Charter, the Court looked at what remedies it could provide. The Supreme Court of Canada was hearing an appeal from the Federal Court of Appeal on a "section 28 application" and therefore the Supreme Court had jurisdiction only to do whatever the Federal Court could have done on the section 28 application. The Supreme Court of Canada, even acting as a "court of competent jurisdiction" under subsection 24(1) of the Charter, could not order RSAC and the Minister to change their procedures. The remedy provided by the Supreme Court was to order the IAB to hold oral hearings on the merits of the claims by treating the section of the Immigration Act which restricted their power to allow oral hearings in all cases as being of no force and effect to the extent of its inconsistency with section 7 of the Charter.

The Bill of Rights Approach

Beetz J. (Estey and McIntyre, concurring) wrote the judgment on the basis of the Bill of Rights and expressly refrained from commenting on the applicability of the Charter [page 223]. The Court stated at page 224:

 

Section 2(e) of the Bill of Rights provided:

The Court held that the "rights" referred to in section 2(e) were broader than the "human rights and fundamental freedoms" mentioned in section 1 of the Bill of Rights and that refugee claimants were entitled to the benefits of section 2(e).

An oral hearing is not required in all cases where rights are being determined; it depends on the nature of the legal rights and the severity of the consequences [page 229]. Threats to life or liberty by a foreign power are relevant to determining the type of hearing required [page 231]. Such cases may involve findings of fact and credibility, and an oral hearing is therefore necessary.

The Court also emphasized that "it is not enough that justice be done, it must appear to be done" [page 233], and the Court was critical of the procedure which allowed "a decision without reasons, without a hearing, without any statement of the Minister's objections, if any, to the appellant's claim for refugee status" [page 234].

The Court therefore set aside the IAB's decision on the basis of section 2(e) of the Bill of Rights and had this comment about the limits on the Court's power to fashion a remedy [pages 235-36]:

13.4 AUTHORITY OF ADMINISTRATIVE TRIBUNALS TO CONSIDER CONSTITUTIONAL CHALLENGES UNDER S. 52(1)

A " Charter challenge" is an argument that an Act, a Rule, or a Regulation, or the method of implementation of any of these legislative provisions, is invalid, in whole or in part, because it conflicts with the provisions of the Canadian Charter of Rights and Freedoms. If the Charter challenge is successful, the provision in question would be said to be unconstitutional. A Charter challenge may also take the form of an argument that it would be contrary to the Charter for a tribunal to assume jurisdiction in a particular case, to adopt a certain procedure, or to make a certain order.

Charter challenges may be based either (1) on subsection 52(1) of the Constitution Act, 1982, i.e., that any law inconsistent with the provisions of the Constitution is of no force and effect, or (2) on subsection 24(1) of the Charter, i.e., that a "court of competent jurisdiction" may grant an appropriate remedy to a person whose rights under the Charter have been infringed or denied.

The principle of supremacy of the Constitution, as set out in section 52 of the Constitution Act, 1982, was highlighted in an early decision of the Supreme Court of Canada in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. In Big M Drug Mart, the Supreme Court considered arguments from a corporation which had been charged with a breach of the Lord's Day Act. The corporation argued that Act was an unconstitutional infringement of the guarantee to freedom of conscience and religion in section 2(a) of the Charter. The Supreme Court held that the question of the invalidity of the law can be raised at trial in provincial court (which is not a superior court). A challenge to the constitutionality of the legislation, the Supreme Court implied, may be based on section 52 of the Constitution Act, 1982 without any reference to whether the tribunal is a court of competent jurisdiction under subsection 24(1).

It should be noted, however, that the authority to make general declarations that enactments of Parliament are invalid belongs only to superior courts. An inferior court or administrative tribunal cannot make such general declarations. In other words, an administrative tribunal could only make a ruling that would have an effect on the case before it and is limited in its applicability to the matter in which it arises. Therefore, it is unable to make a binding declaration that would serve as a legal precedent.

Since, by reason of subsection 52(1) of the Constitution Act, 1982, a provision in a statute which is inconsistent with the Charter is invalid, it would appear that a court or administrative tribunal which must apply a law, should also be able to consider the effect of the Charter on that law. Because of their statutory origins, administrative tribunals must ensure that their powers are exercised, and their proceedings conducted, in a way that complies with the Charter (as described in "Administrative Tribunals and Charter Challenges", a modified version of a paper given at the 12 ^th Annual Conference of the Council of Canadian Administrative Tribunals, Ottawa, April 12, 1996, by John M. Evans, Professor Osgoode Hall Law School). The authority to decide Charter issues, however, may depend upon the nature of the tribunal.

The Supreme Court of Canada, in a series of recent cases, has clearly established that certain administrative tribunals may make Charter considerations in carrying out the mandate conferred upon them by the legislature. Three of these decisions, collectively known as the "trilogy", delineate some basic propositions for deciding whether an administrative tribunal has the authority to determine the validity of a provision within its enabling statute.

The first case, Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570, involved the jurisdiction of an arbitration board, appointed by the parties to a collective agreement in conjunction with the British Columbia Labour Code, to determine the constitutionality of a mandatory retirement provision in the agreement.

The second case was Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, where the issues were age discrimination and the jurisdiction of an unemployment insurance board of referees to consider whether the Unemployment Insurance Act, 1971, violated the equality guarantee of the Charter.

The third case, Cuddy Chicks Ltd. v Ontario (Labour Relations Board),[1991] 2 S.C.R. 5, focussed on a constitutional argument of the respondent union that a provision of the Labour Relations Act was contrary to the Charter. In that case, the respondent union had filed an application for certification before the Ontario Labour Relations Board relating to employees at a chicken hatchery, and discovered that the impugned Act did not apply to persons employed in agriculture.

There are several important principles that may be derived from this "trilogy" of decisions:

• Subsection 52(1) of the Constitution Act, 1982 does not provide an independent source of jurisdiction for deciding constitutional matters. Rather, the question is one of statutory interpretation as to whether Parliament gave the power to decide constitutional matters (which, of course, involve the Charter) to a particular administrative tribunal.

• The power to consider questions of law can be given to an administrative tribunal either explicitly or implicitly by its enabling statute or by some other means. If such a power is conferred to an administrative tribunal, it is subsequently empowered to consider constitutional issues, pursuant to subsection 52 (1) of the Constitution Act. In order for a tribunal to address constitutional issues, however, it must already maintain jurisdiction over the whole of the matter before it. The Supreme Court of Canada had concluded in an earlier decision, Mills v. The Queen, [1986] 1 S.C.R. 863, that the notion of jurisdiction includes whether the tribunal has jurisdiction over: the parties, the subject-matter of the dispute and the remedy sought

• If a tribunal has the power to consider questions of law, then it follows that it must also be able to address constitutional issues, including the constitutional validity of its enabling statute. (The enabling statute is the legislation which created the tribunal or defining its jurisdiction. For the Refugee Division, the enabling statute is the Immigration Act.) Some scholars suggest that where a tribunal has been given an express statutory power to decide questions of law and fact necessary to dispose of a case, this power may be interpreted to include jurisdiction to determine whether the tribunal's statute violates the Charter.

• If a properly empowered tribunal decides that a relevant provision of its enabling statute is inconsistent with the Charter, it has a duty to scrutinize its statute in light of the principle of supremacy enunciated in subsection 52(1) of the Constitution Act, 1982. This may give some statutory benefit for the person concerned. It is important to remember that this type of order based on subsection 52(1) of the Constitution Act, 1982 is distinct from the granting of a remedy for breach of a Charter right. The ability to grant such a remedy depends on whether the administrative tribunal can be considered a "court of competent jurisdiction" within the meaning of subsection 24 (1) of the Charter.

Most recently, the Supreme Court of Canada applied the reasoning of the "trilogy" case law, along with the three-tiered jurisdiction test from Mills, in the decision of Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. The Weber decision stands for the proposition that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought [at page 963].

Despite the importance of the jurisprudence mentioned above, more recent case law from the Supreme Court of Canada underscores the diverging views on the question of whether an administrative tribunal should, in fact, consider Charter arguments. In the decision of Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, the Supreme Court considered whether the Canadian Human Rights Commission, or a tribunal appointed by it to investigate a complaint, has the power to determine the constitutionality of a provision in their enabling statute.

The appellants were being forced to retire at age 60 pursuant to their collective agreement and alleged age discrimination on the grounds that most other Canadians do not have to retire until the age of 65. The respondent employer, on the other hand, argued that there was no discrimination since the employment policy was a bona fide occupational requirement. In referring the matter to a tribunal, the Commission would effectively be striking the relevant section 15(c) of the Canadian Human Rights Act, which states that no discrimination would occur if persons were retired at a normative industrially determined age.

In assessing the issues at hand, the Supreme Court in Cooper borrowed some of the earlier "trilogy" principles. It agreed to first address whether, as a matter of statutory interpretation, Parliament had granted the administrative tribunal, either explicitly or implicitly in its enabling statute, the power to determine questions of law. If that was the case, then it would flow that the tribunal is able to address constitutional issues by virtue of section 52 of the Constitution Act, 1982.

In considering whether an administrative tribunal has the power to determine questions of law, the Supreme Court contemplated various practical matters such as: the composition and structure of the tribunal, the procedure before the tribunal, the appeal route from the tribunal and the expertise of the tribunal. These practical considerations, in so far as they reflect the scheme of the enabling statute, provide an insight into the mandate given to the administrative tribunal by the legislature.

La Forest, J., writing for the majority, concluded that the practical advantages in having the Commission consider the constitutionality of its own statute are limited. Among other considerations in this regard were that the Commission: is not an adjudicative body; conducts an informal process akin to a "paper hearing"; is not bound by the traditional rules of evidence and has little control over the flow of information allowed into the hearing room; has few evidentiary safeguards; has a mandate to deal with its cases in an accessible, efficient and timely manner which would be disrupted by the parties raising constitutional issues; and that it lacks expertise in constitutional matters. For those reasons, the Supreme Court decided that the Commission and its appointed tribunals do not have the mechanisms in place to adequately deal with multifaceted constitutional questions. Rather, the complainants would be better served to seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court.

In the end, the Supreme Court dismissed the appeals and concluded that the Canadian Human Rights Commission, or any tribunal appointed thereunder, has no jurisdiction under the Canadian Human Rights Act to subject its provisions to constitutional scrutiny. In a concluding remark [at page 898], the Court attempted to clarify any diverging views in recognizing that "while a tribunal may have jurisdiction to consider general legal and constitutional questions, logic demands that it has no ability to question the constitutional validity of a limiting provision of the Act".

A recent Federal Court decision, Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43, examined the question of whether a Senior Immigration Officer (" SIO") has the power under subsection 52(1) of the Constitution Act, 1982 to declare inoperative certain sections of the Immigration Act.

The facts in Gwala reveal that the Applicant was initially granted refugee status in Vancouver in August 1994. However, he was later apprehended by immigration authorities in January 1995 for alleged fraud and misrepresentation. Following an interview, the SIO advised the Applicant that she believed him to have obtained his referral to the Refugee Division on the basis of fraud and misrepresentation of a material fact, pursuant to section 46.4 (1) of the Immigration Act. Moreover, the Applicant was advised that subsection 46.4 (2) of the Act rendered any prior decision by the Refugee Division in respect of his refugee claim null and void. The SIO then revisited the initial eligibility decision and determined that the Applicant was ineligible for determination of his claim by the Refugee Division because he already had a claim decided by the tribunal, pursuant to paragraph 46.01 (1) of the Act.

The Applicant sought judicial review of the SIO's decision, challenging the constitutionality of section 46.4 of the Immigration Act insofar as it requires the making of an order which violates his constitutional rights. The Minister, on the other hand, argued that the Federal Court lacked the jurisdiction to decide the constitutional questions because the SIO does not have the power under subsection 52 (1) of the Constitution Act, 1982 to decide the constitutional validity of section 46.4 of the Immigration Act.

Following the reasoning of the Supreme Court in Cooper, the Federal Court determined that the SIO does not have an adjudicative function, but is required rather to make a determination as to eligibility only. The Immigration Act does not provide for a hearing or other procedure, and the SIO lacks any special expertise in dealing with questions of law. This analysis lead the Federal Court to conclude that the legislator had in mind a simple administrative procedure and not the conferring on the SIO of subsection 52(1) jurisdiction.

While the Federal Court recognized that its finding ultimately meant that it, too, lacked the jurisdiction on judicial review, it decided nevertheless to consider the constitutional validity of section 46.4 of the Immigration Act, in the event that it had wrongly decided the issue of the SIO's jurisdiction. Ultimately, the Federal Court affirmed the constitutionality of section 46.4 and concluded that it was not contrary to sections 7 or 12 of the Charter. [It should be noted that the Federal Court certified a question in this case as to the implied jurisdiction of SIOs to decide questions of law.]

13.5 AUTHORITY OF THE REFUGEE DIVISION TO DEAL WITH CHARTER CHALLENGES

The case law makes it difficult to be certain about the jurisdiction of the Refugee Division to consider Charter challenges under subsection 52(1) and subsection 24(1). What follows, therefore, should be read with an awareness that the law in this area is still developing.

13.5.1 Subsection 52(1) and Constitutional Challenges

In terms of considering whether the Refugee Division has authority under subsection 52(1) to decide questions of constitutional law, it seems clear that the Federal Court - Trial Division case of Gwala, discussed above, can be easily distinguished. There is a fundamental difference between the jurisdiction of a Refugee Division Member, who is often called upon to make complex legal decisions in a quasi-judicial setting, and an SIO, whose jurisdiction is quite limited.

Moreover, the rationale of the "trilogy" cases discussed above would seem to militate in favour of finding that the Refugee Division does indeed possess the authority to find provisions of the Immigration Act to be unconstitutional. Furthermore, case law [e.g., Singh, Davinder v. M.E.I. (F.C.T.D., no. T-2688-89), Pinard, March 15, 1990] indicates that first-level hearing panels (Adjudicator and a Refugee Division Member determining eligibility and credible basis under Bill C-55) could apply section 52 of the Constitution Act, so it would seem that the Refugee Division panels should have that authority as well.

Although the matter has not come squarely before the court, it may be argued that the Refugee Division is a "judicial authority" and thus, it is empowered to decide Charter questions that arise in the course of exercising its statutory jurisdiction. For instance, the Refugee Division is not an ad hoc institution, and the statutory terms of appointment of the Chairperson of the Board and its full-time members go a long way to ensuring that the Refugee Division is independent of the executive branch of government. However, it also has to be acknowledged that, unlike Umpires appointed under the Employment Insurance Act, the members of the Division are not required to be or to have been judges or to have been legally qualified.

13.5.2 Subsection 24(1) and Refugee Determinations

The question of whether the Refugee Division is considered a "court of competent jurisdiction" has not been directly addressed by the courts either. Consequently, it is not clear whether the Refugee Division would fall within the ambit of section 24 of the Charter.

In Mooring v. Canada, [1996] 1 S.C.R. 75, the Supreme Court of Canada considered whether the National Parole Board is a "court of competent jurisdiction" for purposes of excluding evidence under section 24(2) of the Charter. The facts of the case may be described briefly as follows. The Respondent had been released on mandatory supervision after having served a term of imprisonment for robbery and other related offences. When responding to a call reporting that two men had been seen attempting to break into a car, police officers found the Respondent in his van nearby. They searched the van and found a stolen handgun as well as what could have been housebreaking equipment. However, proceedings on all charges against the Respondent were later stayed because Crown counsel believed the search to be in violation of the Charter, and that the evidence therein obtained would therefore have been inadmissible in a trial.

Despite the stay of the charges, the Parole Board nevertheless revoked the Respondent's release. While the Appeal Division affirmed the Board's decision, the British Columbia Court of Appeal later allowed the Respondent's appeal. According to the majority, the Parole Board was a "court of competent jurisdiction" with the ability to exclude evidence where such evidence was obtained by way of a Charter violation. As a result, the Board's decision was quashed, and the Respondent was released from custody. The Parole Board and the Warden of Kent Institution then went to the Supreme Court of Canada, which allowed their appeal on the grounds that the Board is not a court of competent jurisdiction for purposes of excluding evidence, within the meaning of section 24(2) of the Charter.

The Supreme Court in Mooring reasoned that even assuming that the Parole Board has jurisdiction over the parties and the subject matter, both its structure and function and the language of its constituting statute show that it is not empowered to make the order sought. The Court considered, among other things, that the Parole Board acts in neither a judicial nor a quasi-judicial manner and that the traditional rules of proof and evidence do not apply [at page 91]. In addition, the Court noted other differences between parole hearings and more traditional court proceedings. For instance the Parole Board lacks the power to issue subpoenas; evidence is not presented under oath; the presiding panel may have no legal training. The Court reasoned that the Parole Board does not actually hear and assess evidence, but instead acts on information. Finally, the language of the enabling statute, the Corrections and Conditional Release Act, indicates that the Parole Board lacks the jurisdiction to exlude evidence [at page 93].

Having regard to the Mooring decision, however, it may nevertheless be argued that the Refugee Division constitutes a "court of competent jurisdiction" even though, unlike the present Immigration Appeal Division and the former Immigration Appeal Board, it is not designated by the Act as a "court of record". Some cases (although there are others to the contrary) have held that an administrative tribunal can qualify as a "court" for the purpose of subsection 24(1), even though the tribunal has not designated as a "court of record".

Subsection 24(1) of the Charter uses "court of competent jurisdiction" in the English version, but "un tribunal compétent" in the French version. Case law has not been unanimous as to the significance of the fact that the French version appears to be a wider term, and thus more likely than the English version to include administrative tribunals.

Additionally, it may be said that the Refugee Division possesses jurisdiction over constitutional matters in so far as such power is explicitly or implicitly conferred in its enabling statute, the Immigration Act. The following factors suggest that the Refugee Division might be characterized as a "court of competent jurisdiction" for that purpose of section 24:

1. its sole and exclusive jurisdiction under subsection 67(1) of the Immigration Act to decide all questions of law and fact, including questions of jurisdiction;
2. the independence of the Refugee Division from the Minister [see especially Immigration Act, ss. 58(1),(2) and 61, regarding appointment of members];
3. its powers to summon witnesses, to order the production of documents and to administer oaths [ Immigration Act, s. 67(2)];
4. the similarity of its function to that of traditional courts, in that the Refugee Division determines individuals' existing legal rights and obligations by applying reasonably objective, prescribed statutory standards to particular facts;
5. its obligation to conduct oral hearings in accordance with statutory rules of procedure and the rules of natural justice, including the right to produce evidence, to be represented by legal counsel, and to cross-examine witnesses;
6. the expertise of its decision-makers and refugee claim officers;
7. the final nature of its decisions, subject to the narrow right of review by the Federal Court, with leave of a judge of that Court [ Immigration Act, s. 82.1], and a power in the Minister, on limited grounds, to apply for a decision to be reconsidered [ Immigration Act, s. 69.2].

On the other hand, the courts may determine that the enabling statute does not confer the necessary jurisdiction over constitutional matters to the Refugee Division, or that a more narrow interpretation of the word "court" in section 24(1) of the Charter should be adopted.

The following considerations could be used to support the conclusion that the Refugee Division is not a "court of competent jurisdiction" with respect to constitutional issues coming before it:

1. the designation of the Appeal Division of the Immigration and Refugee Board, but not the Refugee Division, as a "court of record" may indicate that the Refugee Division should not be characterized as a "court of competent jurisdiction";
2. in most cases, the Refugee Division will not be deciding a lis inter partes (an issue between parties in dispute) which is the traditional function of courts. The Refugee Division's procedures are generally not adversarial in nature, and may be characterized as a part of the administration of the Immigration Act to establish whether a claimant has a particular legal status. Not all tribunals that are required to hold a hearing in the course of administration of an Act are "courts";
3. the decisions made by the Refugee Division are not based solely upon particular facts about the claimant, but require assessments to be made of the political situation in foreign countries, on the basis of evidence that is very different from that upon which courts of law typically make their decisions;
4. the cases which have held that other administrative tribunals do not have the jurisdiction to determine matters of constitutional validity.

It should be noted that the Charter does not provide any additional jurisdiction to a court or tribunal, and any "remedy" provided under subsection 24(1) of the Charter would have to be in the form of an action which the court or tribunal could ordinarily take. Thus, in taking action under subsection 24(1), the Refugee Division could not award an amount of money as compensation for a Charter violation or do anything else which the Refugee Division would not otherwise have the power to do.

In summary, then, the Refugee Division should proceed cautiously on the basis that it has jurisdiction to entertain Charter challenges. It may well be that the Refugee Division does not meet the analytical framework requirements for a "court of competent jurisdiction" under subsection 24(1) of the Charter, as set out in Mills. Nevertheless, the Supreme Court of Canada has determined that it is not necessary to rely on subsection 24(1) to determine whether the particular tribunal has jurisdiction over constitutional questions [ Cuddy Chicks Ltd v. Ontario (Labour Relations Board), supra, at page 14]. Further, even if the Refugee Division is not a "court of competent jurisdiction" for purposes of excluding evidence under section 24(2) of the Charter, this does not mean that it does not have jurisdiction pursuant to other provisions of the Constitution Act, such as section 52(1). As such, it would appear that the Refugee Division could refuse to give effect to, or apply, any provision of the Immigration Act or its procedures in a manner that it is satisfied is inconsistent with the Constitution (the Charter) pursuant to section 52(1).

13.6 DEALING WITH CHARTER CHALLENGES

13.6.1 Requirement for Notice of Charter Challenges

Section 57 of the Federal Court Act requires that notice be given before any Charter challenges can be made before any "federal board, commission or other tribunal". This requirement applies to the Refugee Division.

• where the constitutional validity, applicability or operability of an Act of Parliament or of any province, or of regulations made thereunder, is in question before the Court or a federal board, commission or other tribunal, the Act or regulation shall not be adjudged to be invalid unless notice has been served on the Attorney General of Canada and the attorney general of each province[see Federal Court Act, s. 57(1)]

• except where otherwise ordered by the Court or federal board, commission or other tribunal, the notice shall be served at least 10 days before the day on which the constitutional question is to be argued [see Federal Court Act, s. 57(2)]

• the Attorney General of Canada and the attorney general of each province are entitled to adduce evidence and make submissions to the Court or federal board, commission or other tribunal in respect of the constitutional question [see Federal Court Act, s. 57(4)]

• where the Attorney General of Canada or the attorney general of a province makes submissions, that attorney general shall be deemed to be a party to the proceedings for the purposes of any appeal in respect of the constitutional question [see Federal CourtAct, s. 57(5)]

A Practice Notice on "Constitutional Questions" was issued by the Chairperson on December 6, 1994. The Practice Notice reads in part: The appropriate form in the Federal Court Rules, 1998, is now Form 69.

13.6.2 Discretion to Deal with Charter Challenges

In dealing with Charter challenges, the panel must exercise its own good judgment in the circumstances of each case, but the following suggestions may be useful.

The panel may find it more efficient to proceed with the claim and leave any Charter issues to the end. If the claimant would receive a favourable decision apart from the claimant's Charter challenge, then the panel should choose to decide the case without making a Charter ruling. In general, the Refugee Division should only make Charter rulings where they are necessary to affect the outcome of a case.

Furthermore, the panel cannot entertain attacks on any particular section of the Immigration Act which is not relevant to the case being decided.

The panel has the right not to deal with Charter challenges which are made informally and without preparation. If the party is not treating the Charter challenge seriously, there is no necessity for the panel to do so.

The panel should not find any parts of any legislation to be inoperative without having given the Minister notice of the Charter challenge and a full opportunity to be heard on the issue.

Charter challenges may involve complex arguments which might be better made in writing. Counsel generally have sufficient time to get ready for Refugee Division hearings and the panel might reasonably expect counsel for the claimant to have put the Charter arguments in writing for the benefit of the Refugee Claim Officer and counsel for the Minister and have provided copies to all parties. Where this has not been done, the panel might inquire as to the reason why counsel for the claimant has not done so.

An adjournment for written Charter arguments to be prepared may be appropriate in some cases, but the panel should keep in mind its duty to proceed expeditiously but fairly [ Immigration Act, s. 68(2)].

13.7 ADJOURNING FOR JUDICIAL REVIEW OF CHARTER CHALLENGES

If the Refugee Division has rejected a Charter challenge, it is not necessarily required to adjourn the proceedings so that the dissatisfied party can go to Court for a determination of the issue. Of course, a panel may decide that the question is sufficiently serious that it would be unfair and wasteful not to adjourn, but the exercise of the power to adjourn is very much within its discretion. The Refugee Division's power to grant adjournments is also, of course, subject to the statutory limitation not to adjourn unless satisfied that an adjournment would not unreasonably impede the proceedings [ Immigration Act, s. 69(6)].

In Attorney General of Manitoba v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, the Supreme Court of Canada indicated that courts should not generally grant an interim stay of the proceedings of an administrative tribunal (i.e., order proceedings halted) pending the judicial determination of any legal challenge made to the constitutionality of the tribunal's enabling legislation.

A claimant in the Refugee Division who is under a conditional removal order is generally not in jeopardy of being removed from Canada until the claim has been determined by the Refugee Division [ Immigration Act, ss. 28(2) and 32.1(6)]. Further, the claimant is generally entitled to a stay of removal until the completion of the claimant's application for judicial review [ Immigration Act, s. 49]. Thus, the claimant has the opportunity to apply for leave to commence an application for judicial review to the Federal Court, and the Federal Court may consider the Charter arguments, if it chooses to do so. The claimant is therefore generally not prejudiced by the Refugee Division's continuing to hear the claim after rejecting the claimant's Charter arguments.

13.8 CANADIAN BILL OF RIGHTS

The Canadian Bill of Rights came into force on August 10, 1960. It applies to all federal laws (but not provincial laws) [ Bill of Rights, s. 5], and therefore it applies to the Immigration Act.

The Bill of Rights recognizes and declares that certain "human rights and fundamental freedoms" exist in Canada, without discrimination by reason of race, national origin, etc. [ Bill of Rights, s. 1]. Of particular interest in section 1 are the following rights and freedoms:

The Bill of Rights requires that every law of Canada, unless the law specifically states that it shall operate "notwithstanding the Canadian Bill of Rights", shall be interpreted and applied in a way that upholds the rights and freedoms recognized and declared in the Bill of Rights [s. 2]. Section 2 also provides that "in particular, no law of Canada shall be construed or applied so as to … The Bill of Rights, however, does not specifically provide that any law which contravenes the Bill of Rights is of no force and effect, nor does it specifically provide for anyone whose rights have been violated to apply to a competent authority for a remedy.

For the first decade, the Bill of Rights had little impact on case law, and in fact it was not clear whether it could be used to strike down a federal law, or whether it was just a means of interpreting federal law.

In the Supreme Court of Canada decision of R. v. Drybones, [1970] S.C.R. 282, the Bill of Rights was used for the first time to find a federal law inoperative. A provision in the Indian Act created an offence for an Indian to be intoxicated off a reserve. This provision was declared inoperative because it violated the equality rights in section 1(b) of the Bill of Rights, in that it treated an individual unequally with others on account of race.

The Bill of Rights, section 1(d), was used in R. v. Cole (1980), 115 D.L.R. (3d) 382 (Man. Co.Ct.), leave to appeal refused 119 D.L.R. (3d) 575 (Man. C.A.), to find that an adjudicator could not compel the subject of an inquiry to testify if the person would have to give self-incriminating testimony. A contrary decision was rendered in Ontario, however, in R. v. Forrester (1982), 2 C.C.C. (3d) 467 (Ont. C.A.).

In the Singh decision, the Supreme Court of Canada revitalized the Canadian Bill of Rights. The issue was whether the refugee determination process existing at the time was invalid because it did not necessarily provide the claimant with an oral hearing. Three of the Supreme Court judges used the Canadian Charter of Rights and Freedoms as the basis for their decision, but the other three judges used only the Canadian Bill of Rights to find that parts of the then existing Immigration Act were invalid. They found that the procedures in question violated the "right to a fair hearing in accordance with the principles of fundamental justice" set out in section 2(e) of the Bill of Rights.

Many of the rights and freedoms set out in the Charter are also set out in the Bill of Rights, but the difference in wording may provide an additional benefit to a person in a particular case. For example, section 2(e) of the Bill of Rights ensures a fair hearing in accordance with the principles of fundamental justice for the determination of (all) "rights and obligations", whereas section 7 of the Charter ensures fundamental justice only where "life, liberty and security of the person" are involved.

Appendix 13A - Canadian Charter of Rights and Freedoms

 

Appendix 13B - Constitution Act, 1982, s. 52:

Appendix 13C - Canadian Bill of Rights

Appendix 13D - Federal Court Act, s. 57

Appendix 13E - Rule 69 and Form 69: Notice Of Constitutional Question

Federal Court Rules, 1998: Rule 69

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FORM 69 Rule 69
NOTICE OF CONSTITUTIONAL QUESTION
(General Heading - Use Form 66)

The (identify party) intends to question the constitutional validity, applicability or effect (state which) of (identify the particular legislative provision).
The question is to be argued on (day), (date) at (time), at (place).
The following are the material facts giving rise to the constitutional question: (Set out concisely the material facts that relate to the constitutional question. Where appropriate, attach pleadings or reasons for decision.)
The following is the legal basis for the constitutional question: (Set out concisely the legal basis for each constitutional question and identify the nature of the constitutional principles to be argued.)

 

 

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Appendix 13F - Selected Case Law: The Charter

Authority of Tribunals to Apply the Charter

(i) The Supreme Court of Canada "Trilogy"

1. Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570 (which involved the jurisdiction of an arbitration board, appointed by the parties to a collective agreement in conjunction with the British Columbia Labour Code, to determine the constitutionality of a mandatory retirement provision in the agreement)
2. Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22 (where the issues were age discrimination and the jurisdiction of an unemployment insurance board of referees to consider whether the Unemployment Insurance Act, 1971 violated the equality guarantee of the Charter)
3. Cuddy Chicks Ltd. v Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (which focussed on a constitutional argument of the respondent union that a provision of the Labour Relations Act was contrary to the Charter. The respondent union had filed an application for certification before the Ontario Labour Relations Board relating to employees at a chicken hatchery, and discovered that the impugned Act did not apply to persons employed in agriculture.)

(ii) General Cases

1. R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (whether Lord's Day Act infringes freedom of religion, Charter, s. 2(a); provincial court can apply Constitution Act, s. 52, without referring to Charter, s. 24(1))
2. Poirier v. Min. of Veteran's Affairs (1989), 58 D.L.R. (4 ^th) 475 (F.C.A.) (man applying for allowance at age 55; War Veterans Allowance Act provides allowance for men at age 60, women at age 55; F.C.A. agreed that the Veteran's Appeal Board could not consider whether this provision contravenes equality rights, Charter, s. 15; per Marceau J.: only Courts of law, i.e., the judicial branch, can nullify legislation, regarding both s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982; per Pratte and Desjardins JJ.: what applicant was asking for in this case was a remedy under Charter, s. 24(1), something which Board could not grant - not necessary to determine here whether Board had power to apply Constitution Act, 1982, s. 52(1))
3. Schacter v. Canada (Minister of Employment and Immigration) (1990), 66 D.L.R. (4 ^th) 635 (F.C.A.) (whether Unemployment Insurance Act, 1971, s. 32, is inconsistent with Charter, s. 15, because it does not give natural parents same benefits as adoptive parents; per Heald J., Stone J.(concurring): (1) Constitution Act, s. 52 does not preclude the use of s. 24(1) of the Charter, (2) positive remedy needed to correct the under-inclusive legislation, (3) remedy may properly result in increased gov't spending; per Mahoney J. (dissenting): trial judge cannot legislate, especially where gov't spending is increased)

(iii) Initial Hearing Panels

1. Mikaeli v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 562 (T.D.) (Tétreault-Gadoury applied: initial hearing panels have jurisdiction to consider Charter arguments; MTS Stores Ltd. applied: stay of proceedings granted until leave application is disposed of)
2. Singh, Davinder v. M.E.I. (F.C.T.D., no. T-2668-89), Pinard, March 15, 1990 (initial hearing panel ordered to consider and rule upon application of Constitution Act, 1982, s. 52(1); Tétreault-Gadoury, Gurjinder Kaur referred to)
3. Mikaeli, Emili v. M.E.I. (F.C.T.D., no. T-2667-89), Pinard, March 15, 1990 (same as Davinder Singh (T-2668-89), above)
4. Kaur, Gurjinder v. M.E.I. (F.C.A., no. A-1161-88), Heald, Mahoney, Desjardins, December 4, 1989. Reported: Kaur v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 209 (C.A.) (under previous determination system, person concerned declined to make refugee claim because of threats by husband; adjudicator correctly ruling that Immigration Act, s. 35(1), did not permit reopening inquiry for a claim; adjudicator, however, had jurisdiction to reopen inquiry pursuant to Constitution Act, s. 52(1) and not apply limitations in Immigration Act, s. 35(1) to the extent that the Act contravened claimants' rights under s. 7 of the Charter; (2) legislation remains in force but is not applied to a person whose Charter rights have been infringed)
5. M.E.I. v. Borowski, Lech (F.C.T.D., no. T-1916-89), Joyal, February 16, 1990. Reported: Borowski v. Canada (Minister of Employment and Immigration) [1990] 2 F.C. 728 (T.D.) (whether having "designated counsel" only at port of entry discriminates against inland claimants, contrary to equality rights, Charter, s. 15; initial hearing panel could apply Constitution Act, 1982, s. 52(1) to disregard a law, but could not create a remedy under Charter, s. 24(1))

(iv) Immigration Appeal Board

1. Law v. Solicitor General of Canada, [1983] 2 F.C. 181 (T.D.) (Immigration Appeal Board was a "court of competent jurisdiction" to accept a Charter challenge under s. 24(1))
2. Bains v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 487 (C.A.) (IAB had duty to consider whether Charter, s. 7, permitted extension of time to file a claim)

Section 2: Fundamental Freedoms

1. Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 419 (C.A.) ("freedom of press" in s. 2(b) of Charter shifts onus to claimant to show why "member of public" should not be allowed to attend inquiry)
2. Toronto Star Newspapers Ltd. v. Kenney, [1990] 1 F.C. 425 (T.D.) (s. 2(b) Charter right of press to be balanced with s. 7 Charter right of claimant; s. 29(3) of Immigration Act not unconstitutional as adjudicator has a real discretion; Pacific Press considered)

Section 7: Fundamental Justice

1. Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 (three of six judges sitting on panel found the procedures for redetermination of a claim, without an oral hearing, to contravene s. 7 of the Charter)
2. R. v. Wooten (1983), 5 D.L.R. (4 ^th) 371 (B.C.S.C.) (deportation as a result of an inquiry is deprivation of the right to liberty, but person concerned is a compellable witness; this not fundamentally unjust within s. 7 because the person is not incriminating himself, merely admitting a civil liability)
3. Tonato v. Canada (Minister of Employment and Immigration), [1985] 1 F.C. 925 (T.D.) (even though not provided for in the Act, claimants on Minister's permits should have same access to IAB as claimants at inquiry, otherwise they are treated inconsistently with the Singh decision)
4. Carrion v. M.E.I., [1989] 2 F.C. 584 (T.D.) (claimant could not show that s. 7 rights were violated by the transition from the old system to the new refugee determination system)
5. Mohammad v. M.E.I., [1989] 2 F.C. 363 (C.A.), leave to appeal refused [1989] 1 S.C.R. xi (adjudicators are sufficiently independent to carry out their duties under the Act in accordance with the principles of fundamental justice)
6. Bains v. M.E.I., [1989] 3 F.C. 487 (C.A.) (a rigid time for applying for redetermination of a claim is contrary to principles of fundamental justice; IAB must look at circumstances of each case to determine whether fundamental justice requires an extension of time to apply)
7. M.C.I. v. Miah, Shahjahan (F.C.T.D., no. IMM-3626-94), Teitelbaum, March 10, 1995. Reported: Canada (Minister of Citizenship and Immigration) v. Miah (1995), 30 Imm. L.R. (2d) 5 (in a split decision, CRDD determined the claimant to be a Convention refugee, based on s. 7 of the Charter and a five year delay in processing the claim. Delay was caused because the claimant was charged and convicted of a criminal offence. Court held that refugee status cannot be granted solely on the basis of a long delay in processing the claim.)

Section 12: Cruel and Unusual Treatment

1. Gittens v. M.E.I., [1983] 1 F.C. 152 (T.D.) (concept of deportation is not per se cruel and unusual treatment)

Section 15: Equality Rights

1. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (whether non-citizens entitled to be called to the Bar; a law should not be based on irrelevant personal characteristics; "similarly situated" is not appropriate test for violation of equality rights; consideration must be made of content of the law, its purpose, its impact; not every distinction in law will violate equality; s. 15(1) extends protection to grounds of discrimination analogous to enumerated grounds)
2. M.E.I. v. Borowski, Lech (F.C.T.D., no. T-1916-89), Joyal, February 16, 1990. Reported: Borowski v. Canada (Minister of Employment and Immigration) [1990] 2 F.C. 728 (T.D.) (whether providing "designated counsel" only at port of entry improperly discriminates against inland claimants; even if it does contravene s. 15, it is a "reasonable limit" under s. 1)

Appendix 13G - Selected Case Law: The Canadian Bill of Rights

1. R. v. Drybones, [1970] S.C.R. 282 (offence under Indian Act inoperative as it contravenes equality rights in s. 1(b) of the Bill of Rights)
2. Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 (per Beetz, Estey and McIntyre JJ.: lack of oral hearing on refugee determination procedures contravenes s. 2(e) of the Bill of Rights)
3. R. v. Cole (1980), 115 D.L.R. (3d) 382 (Man.Co.Ct.) (subject of inquiry not a compellable witness because of s. 1(d) of Bill of Rights; note contrary opinion in R. v. Forrester (1982), 2 C.C.C. (3d) 467 (Ont. C.A.)

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