Brar v. Canada (Solicitor General) et al., (1989) 30 F.T.R. 284 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: April 14, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 30 F.T.R. 284 (TD)

Brar v. Can. (1989), 30 F.T.R. 284 (TD)

MLB headnote and full text

Lakbir Singh Brar (applicant) v.

Her Majesty the Queen as represented by the Solicitor General of Canada and the Minister of Employment and Immigration and The Director of the Canadian Security Intelligence Service and The Chairman of the Security Intelligence Review Committee (respondents)

(T-407-89)

Indexed As: Brar v. Canada (Solicitor General) et al.

Federal Court of Canada

Trial Division

MacKay, J.

December 11, 1989.

Summary:

Brar applied to be admitted to Canada as a refugee. Before a decision was made respecting his application, the Solicitor General and the Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation and report about his security status pursuant to s. 39(2) of the Immigration Act. Brar commenced an action against the Solicitor General and the Minister of Employment and Immigration, claiming that the procedures of the Committee violated his Charter rights and were contrary to the administrative law principles of fundamental justice. Brar then applied for interlocutory and interim injunctive relief restraining the Committee from further investigation of the matter.

The Federal Court of Canada, Trial Division, dismissed the application.

Aliens - Topic 1212

Admission - Immigrants - Security threats - An alien applied to be admitted to Canada as a refugee - Before a decision was made respecting his application, the Solicitor General and the Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation and report about his security status under s. 39 of the Immigration Act - The Federal Court of Canada, Trial Division, reviewed the provisions of the Immigration Act and the Canadian Security Intelligence Service Act which were applicable when such report was made to the Security Intelligence Service Committee - See paragraphs 23 to 32.

Aliens - Topic 4063

Practice - Judicial review - Leave to apply for judicial review - Brar sought admission to Canada as a refugee - Before a decision was rendered, the Solicitor General and the Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation of his security status (Immigration Act, s. 39(2)) - On February 24, 1989, Brar sued the Solicitor General and M.E.I., alleging that Committee procedures violated his Charter rights and administrative law principles - Brar then applied for injunctive relief - The Federal Court of Canada, Trial Division, held that under 1988 amendments to the Immigration Act (S.C. 1988, c. 35), which came into effect on January 1, 1989, Brar was required to apply for leave to commence his proceeding - The court however granted leave, notwithstanding the lack of a formal application before commencement of the action - See paragraphs 16 to 22.

Aliens - Topic 4063

Practice - Judicial review - Leave to apply for judicial review - The Immigration Act, s. 82.1(1), provided that leave was required to commence an application or other proceeding under ss. 18 or 28 of the Federal Court Act respecting decisions made under the Immigration Act or Regulations - The Federal Court of Canada, Trial Division, stated that in cases involving applications for leave to proceed under s. 82.1(1) of the Immigration Act, the test has been whether the application raises a serious issue to be heard - See paragraph 21.

Civil Rights - Topic 2807

Language - Assistance of interpreter - Before boards and inquiries - Brar sought to be admitted to Canada as a refugee - Before a decision was rendered, the Solicitor General and Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation of his security status - Brar commenced an action to stop the Committee investigation alleging a violation of s. 14 of the Charter (the right to assistance of an interpreter) - The Federal Court of Canada, Trial Division, refused to grant interlocutory or interim injunctive relief where there was no serious issue to be tried respecting s. 14 - The court noted that s. 14 applied to Committee proceedings, but the Committee made reasonable efforts to comply with the Charter - See paragraphs 14 to 43.

Civil Rights - Topic 3193

Trials - Due process - Fundamental justice and fair hearings - Administrative and non-criminal proceedings - Procedure not contrary to fundamental justice - Brar sought admission to Canada as a refugee - Before a decision was rendered, the Solicitor General and the Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation of his security status - Brar commenced an action to stop the Committee investigation, alleging a violation of the principles of fundamental justice contrary to s. 7 of the Charter - The Federal Court of Canada, Trial Division, refused to grant interlocutory or interim injunctive relief where there was no serious issue to be tried respecting s. 7 - See paragraphs 46 to 52.

Civil Rights - Topic 8305.1

Charter - Application - S. 11 - Brar sought to be admitted to Canada as a refugee - Before a decision was rendered, the Solicitor General and Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation of his security status - Brar commenced an action to stop the Committee investigation, alleging violations of the procedural protections of s. 11 of the Charter - The Federal Court of Canada, Trial Division, refused to grant interlocutory or interim injunctive relief where there was no serious issue to be tried respecting s. 11, because the investigation was not subject to s. 11 where Brar could not be charged with an offence - See paragraphs 44 to 45.

Civil Rights - Topic 8317

Charter - Application - Administrative law - The Federal Court of Canada, Trial Division, held that the Security Intelligence Review Committee set up under the Canadian Security Intelligence Service Act, has a responsibility under s. 52(1) of the Constitution Act, 1982, to apply the law and avoid application of a law that infringes the Charter - See paragraph 39.

Injunctions - Topic 1610

Interlocutory or interim injunctions - Circumstances when injunction will not be granted - Brar sought to be admitted to Canada as a refugee - Before a decision was rendered, the Solicitor General and Minister of Employment and Immigration reported him to the Security Intelligence Review Committee for investigation of his security status - Brar commenced an action against the Solicitor General and the M.E.I., alleging that the procedures of the Committee violated Charter rights and administrative law principles - The Federal Court of Canada, Trial Division, refused to grant interlocutory or interim injunctive relief, notwithstanding that there was a serious issue to be tried respecting the administrative law principle of fairness, where there was no likelihood of irreparable harm and the balance of convenience favoured not granting the injunction.

Injunctions - Topic 1616

Interlocutory or interim injunctions - Serious issue to be tried - [See Civil Rights - Topic 3193 above].

Injunctions - Topic 1616

Interlocutory or interim injunctions - Serious issue to be tried - [See Injunctions - Topic 1610 above].

Injunctions - Topic 1616

Interlocutory or interim injunctions - Serious issue to be tried - [See Civil Rights - Topic 8305.1 above].

Injunctions - Topic 1616

Interlocutory or interim injunctions - Serious issue to be tried - [See Civil Rights - Topic 2807 above].

National Security - Topic 1103

Canadian Security Intelligence Service - Security Intelligence Review Committee - Jurisdiction - Charter issues - [See Civil Rights - Topic 8317 above].

National Security - Topic 1105

Canadian Security Intelligence Service - Security Intelligence Review Committee - Injunctions against - [See Injunctions - Topic 1610 above].

National Security - Topic 1108

Canadian Security Intelligence Service - Security Intelligence Review Committee - Investigation of security threats - Aliens - [See Aliens - Topic 1212 above].

National Security - Topic 1111

Canadian Security Intelligence Service - Security Intelligence Review Committee - Charter protections - S. 11 - [See Civil Rights - Topic 8305.1 above].

National Security - Topic 1112

Canadian Security Intelligence Service - Security Intelligence Review Committee - Right to an interpreter - [See Civil Rights - Topic 2807 above].

Cases Noticed:

Bing Hui Wu et al. v. Minister of Employment and Immigration, [1989] 2 F.C. 175 (F.C.T.D.), refd to. [para. 21].

Blanusa v. Minister of Employment and Immigration et al. (1989), 27 F.T.R. 107 (F.C.T.D.), refd to. [para. 21].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers' Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 18 C.P.C.(2d) 273, refd to. [paras. 34, 57, 58].

Tetreault-Gadoury v. Canada Employment and Immigration Commission, [1989] 2 F.C. 245; 88 N.R. 6 (F.C.A.), refd to. [para. 39].

Zwarich v. Attorney General of Canada, [1987] 3 F.C. 253; 82 N.R. 341 (F.C.A.), refd to. [para. 39].

Wyllie v. Wyllie (1987), 37 D.L.R.(4th) 376; 30 C.R.R. 181 (B.C.S.C.), refd to. [para. 43].

Roy v. Hackett (1987), 23 O.A.C. 282; 45 D.L.R.(4th) 415; 62 O.R.(2d) 365 (C.A.), refd to. [para. 43].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(4th) 235, refd to. [para. 45].

Bowen v. Minister of Employment and Immigration, [1984] 2 F.C. 507; 58 N.R. 223 (C.A.), refd to. [para. 45].

Carey v. Ontario, [1986] 2 S.C.R. 637; 72 N.R. 81 (S.C.C.), refd to. [para. 48].

Ross v. Kent Institution (1987), 57 C.R.(3d) 79 (B.C.C.A.), refd to. [para. 48].

Vincent v. Minister of Employment and Immigration (1983), 48 N.R. 214; 148 D.L.R.(3d) 385 (F.C.A.), refd to. [para. 48].

R. v. Kevork (1986), 27 C.C.C.(3d) 353 (Ont. S.C.), refd to. [para. 48].

Zanganeh v. Canadian Security Intelligence Service (1988), 20 F.T.R. 100; 50 D.L.R.(4th) 747 (F.C.T.D.), refd to. [para. 48].

Bruce v. Reynett, [1979] 2 F.C. 697 (F.C.T.D.), refd to. [para. 49].

Nicholson v. Haldimand-Norfolk Board of Commissioners of Police and Attorney General of Ontario, [1979] 1 S.C.R. 311; 23 N.R. 410; 88 D.L.R.(3d) 671, refd to. [para. 51].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1; 50 C.C.C.(2d) 353, refd to. [para. 51].

Maligne Building Ltd. v. Minister of Environment (1980), 37 N.R. 562 (F.C.A.), refd to. [para. 54].

Operation Dismantle Inc. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.P.R. 287, refd to. [para. 54].

Fishing Vessel Owners' Association of British Columbia et al. v. Canada, [1985] 1 F.C. 791; 57 N.R. 376 (F.C.A.), refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, generally [paras. 1, 2, 13, 33, 37]; sect. 1 [para. 38]; sect. 7 [paras. 1, 40, 46-51]; sect. 11 [paras. 1, 40, 44-45, 51]; sect. 14 [paras. 1, 40-43, 51]; sect. 24 [para. 39].

Canadian Security Intelligence Act, R.S.C. 1985, c. C-23, sect. 34, sect. 37 [para. 28]; sect. 38 [para. 29]; sect. 39, sect. 39(1), sect. 43 [para. 30]; sect. 46 [paras. 9, 30]; sect. 48, sect. 50 [para. 30].

Canadian Security Intelligence Act, Rules of Procedure of the Security Intelligence Review Committee, rule 33, rule 35, rule 36, rule 38, rule 45, rule 47, rule 48, rule 49 [para. 31]; rule 51 [paras. 31, 41].

Canadian Security Intelligence Service Act, S.C. 1983-84, c. 21, sect. 46 [para. 9].

Constitution Act, 1982, sect. 52(1) [para. 39].

Immigration Act, R.S.C. 1985, c. I-2, sect. 27 [para. 26]; sect. 39, sect. 40 [para. 23, footnote 1].

Immigration Act, S.C. 1976-77, c. 52, sect. 19(1) [para. 26]; sect. 19(1)(e) [paras. 7, 9, 26]; sect. 19(1)(f) [paras. 9, 26]; sect. 27 [para. 26]; sect. 39 [paras. 23, 30, 32, 35, 48, 51, 57]; sect. 39(2) [paras. 1, 7, 27]; sect. 39(3), sect. 39(5) [para. 30]; sect. 40 [para. 24]; sect. 50 [paras. 16, 19]; sect. 52, sect. 54, sect. 55 [para. 30]; sect. 82.1 [paras. 16, 20]; sect. 82.1(3), sect. 82.1(6) [para. 22].

Rules of Procedure of the Security Intelligence Review Committee - see Canadian Security Intelligence Act.

Authors and Works Noticed:

Eberts, M., Section 7 of the Charter plus natural justice: An Administrative Justice Section 11? [para. 37, footnote 3].

Garton, G.R., Civil Litigation Under the Charter, from Charter Issues in Civil Cases 1988 [para. 37, footnote 3].

Richard, John D., Particular Issues Relating to Federal Tribunals [para. 37, footnote 3].

Shields, J. and Ian C. Vallance, Procedural Fairness: Section 11 and the Role of Counsel [para. 37, footnote 3].

Taman, L., Jurisdiction of Administrative Tribunals to Consider Charter Arguments [para. 37, footnote 3].

Whitehall, I.G., Administrative Tribunals and Section 7 of the Charter from Charter Issues in Civil Cases 1988 [para. 37, footnote 3].

Counsel:

Stuart B. Scott, for the plaintiff/applicant (Lakbir Singh Brar);

Donald J. Rennie, for the defendants/respondents (Her Majesty The Queen et al.);

Simon Noël and Sylvie Roussel, for the defendant/respondent (Security Intelligence Review Committee).

Solicitors of Record:

Stuart B. Scott, Toronto, Ontario, for the plaintiff/applicant (Lakbir Singh Brar);

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendants/respondents (Her Majesty The Queen et al.);

Noël, Décary, Aubry et Associés, Hull, Quebec, for the defendant/respondent (Security Intelligence Review Committee).

This application was heard in Ottawa, Ontario, on April 14, 1989, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on December 11, 1989: