Comment on Singh v. Minister of Employment and
Immigration
Julius H. Grey*
The authorexamines the impact ofthe Supreme
Court decision in Singh v. Minister of
Employment and Immigration in three areas:
immigration, constitutional and administra-
tive law. This decision heralds a more humane
approach in Canadian immigration law and
highlights the potential influence of the Charter.
The Court also clarifies the role of judicial
review and the distinction between “rights”
and “privileges” in administrative law.
I’auteur dvalue l’impact de la decision de Ia
Cour supreme dans ‘affaire Singh c. Ministre
de l’Emploi et de l’Immigration sur les plans
du droit constitutionnel, administratif et du
droit de l’immigration. Cette decision annonce
une nouvelle approche plus humaine au droit
de l’immigration canadien, et l’influence
potentielle de la Charte. De plus, la Cour cla-
rifle le r6le du contentieux administratifet la
distinction entre “droit” et “privilege” en droit
administratif.
Introduction
Singh v. Minister of Employment and Immigration1 is significant in
three distinct ways. It is of great importance in rendering more humane
Canadian immigration law. It is a major step forward in the application of
the Canadian Charter of Rights and Freedoms2 and other human rights
documents. Finally, it reinforces the growing bonds between the “new con-
stitutional law”, as best exemplified by the Charter, and administrative law.
Each of these deserves separate discussion.
Before discussing the manner in which Singh affected three important
areas of law, it is useful to comment on the facts. Mr Singh was brought
before an inquiry held under the Immigration Act, 19763 for the purpose
of determining whether he could remain in Canada. He made a claim to
refugee status as defined under the Act. He submitted a sworn statement
under section 45 of the Act and, in due course, the Minister rejected his
claim. He then applied for redetermination of his claim to the Immigration
*Of the Faculty of Law, McGill University.
1(1985), [1985] 1 S.C.R. 177, (sub nom. Re Singh and Minister of Employment and Immi-
gration) 17 D.L.R. (4th) 422, 58 N.R. 1 [hereinafter Singh cited to S.C.R.].
2Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982,
c. 11 [hereinafter the Charter].
3S.C. 1976-77, c. 52.
@McGill Law Journal 1986
Revue de droit de McGill
1986]
COMMENTS
Appeal Board. The Board exercised its power under section 71 and sum-
marily dismissed the application with no hearing and with only the sworn
statement and another affidavit signed by Mr Singh before it.
These facts are the basis of the argument before the Supreme Court.
The details of Mr Singh’s case and the justification of his refugee application
are utterly insignificant. The essential issue is that at no time was he able
to put his arguments directly to those who had to decide, to meet them,
and to try to sway them.
A.
Immigration Law
It is logical to begin with immigration law, because the issue decided
by the case is most easily explained in that light.
Since the hardening of views on immigration in the early 1970s, a claim
to refugee status has been the only way for a person already inside Canada
to become a landed immigrant. All persons without such a claim had to
leave the country and apply from outside. It is true that this was a rule more
honoured in the breach than in the observance. Orders in Council were
routinely used for “hard cases” or cases which, for one reason or another,
the Department of Employment and Immigration wanted to assist. How-
ever, most applicants were simply told that, except for refugee status, no
avenue was open inside the country.
In part as a result of this and in part because of political problems in
many parts of the world, there was an extremely high incidence of refugee
applications. It is impossible to know how many persons thought themselves
genuine refugees and how many wanted to live and work in Canada for
awhile.4 The Department was at most times willing to assume the worst
motives on the part of applicants.5 Although the truth is clearly different
from the official version and the abuse of the refugee process is caused as
much by the undue harshness of our law as by improper exploitation of the
system by applicants, there is little doubt that the number of applications
4There was also another group of persons married to Canadians who made refugee appli-
cations in order to avoid separation from their families during the processing of their claims.
This problem has been eliminated by an administrative (but not legislative) change in 1985.
Spouses are now permitted to remain until their landing is granted or refused. Clearly, the
blame for the abuse of the refugee process in these cases lay with the Department, not the
persons making the claim. It is fortunate that the problem is solved.
5See the statement on illegal immigrants by Lloyd Axworthy, Minister of Employment and
Immigration: Canada, House of Commons, Standing Committee on Labour, Manpower and
Immigration, Minutes of Proceedings and Evidence of the Standing Committee on Labour,
Manpower and Immigration, No. 47 at 47-4ff. (29 June 1983). See also Report to the Minister
of Employment and Immigration, Illegal Migrants in Canada by W.G. Robinson (Hull, Que.:
Supply & Services Canada, June 1983).
REVUE DE DROIT DE McGILL
[Vol. 31
strained the Department’s resources, that it produced unacceptable delays
and that at least some flagrant abuses of the system did occur.6
It is not surprising that the legislator looked for ways of accelerating
the application process and of weeding out manifestly unfounded cases. The
solution adopted was to allow everyone to make an application 7 but to
attempt to limit the redetermination process before the Immigration Appeal
Board to worthy cases.8 The means chosen to achieve this end was subsec-
tion 71(1) of the Immigration Act, 1976 which reads as follows:
Where the Board receives an application referred to in subsection 70(2), it shall
forthwith consider the application and if, on the basis of such consideration,
it is of the opinion that there are reasonable grounds to believe that a claim
could, upon the hearing of the application, be established, it shall allow the
application to proceed, and in any other case it shall refuse to allow the appli-
cation to proceed and shall thereupon determine that the person is not a Con-
vention refugee.9
It was perhaps possible to view this subsection as allowing the elimi-
nation only of cases utterly unlikely to succeed. This seemed to be the tenor
of Minister of Manpower and Immigration v. Fuentes.10 However, the Fed-
eral Court on the whole inclined towards the harder view that an applicant
must, at the outset, demonstrate the probability of his victory in order to
obtain a hearing.” This view was ultimately approved by the Supreme
6See J.H. Grey, Immigration Law in Canada (Toronto: Butterworths, 1984) at 122-23 and
160-63, where this writer has already expressed his views on these matters. See also C.J.
Wydrzynski, Canadian Immigration Law and Procedure (Aurora, Ont.: Canada Law Book,
1983).
7See Brannson v. Minister of Employment and Immigration (1980), [1981] 2 EC. 226, 36
N.R. 317 (A.D.); Mensah v. Minister of Employment and Immigration (1981), [1982] 1 EC.
70, 36 N.R. 332 (A.D.); Duran v. Minister of Employment and Immigration (1980), [1981] 2
EC. 188, 42 N.R. 342 (A.D.).
8″Redetermination” is similar to an appeal but is obviously a de novo process.
9The French version of subsection 71(l) reads:
La Commission, saisie d’une demande vis6e au paragraphe 70(2), doit l’examiner
sans d6Ilai. A la suite de cet examen, la demande suivra son cours au cas oil la
Commission estime que le demandeur pourra vraisemblablement en 6tablir le bien-
fond6 A l’audition; dans le cas contraire, aucune suite n’y est donn6e et la Com-
mission doit d6cider que le demandeur n’est pas un r6fugi6 au sens de ]a Convention.
This is extremely important since the French text became the basis of the Supreme Court
decision in Kwiatkowsky v. Minister of Employment and Immigration (1982), [1982] 2 S.C.R.
856, (sub nom. Re Kwiatkowsky and Minister of Manpower & Immigration) 142 D.L.R. (3d)
385, (sub nom. Kwiatkowsky v. Minister of Manpower and Immigration) 45 N.R. 116 [herein-
after Kwiatkowsky cited to S.C.R.]. The French text seems more onerous for the applicant
because of its use of the future tense.
10(1974), [1974] 2 EC. 331 (A.D.). This case dealt with basically identical legislation in force
prior to the Immigration Act, 1976.
“Lugano v. Minister of Manpower and Immigration (1976), [1976] 2 EC. 438, 13 N.R. 322
(A.D.).
19861
CHRONIQUE DE JURISPRUDENCE
Court, 12 because of the drafting of the text. However, misgivings about the
result were present at all levels.13 This is not surprising, because the juris-
prudence left the possibility of injustice open at all times. If people with a
one-third chance of winning are to be denied a hearing and removed, it is
mathematically likely that one in three of them will be a genuine refugee.
Since refugee status is, along with extradition, one of the last areas of law
where matters of life and death routinely arise, it is particularly invidious
that this area should be dealt with in such a summary and indeed random
manner. Moreover, the brazen removal of Convention refugees could not
be regarded otherwise than as a violation of Canada’s international obli-
gations. Kwiatkowsky14 seemed to settle the law;15 in fact it satisfied no one
and renewed calls for reform. 16 The events in Kwiatkowsky though not the
Supreme Court hearing, took place before the Charter, as soon as it had
been proclaimed part of the Constitution, it was inevitable that another
attempt would be made to bring down section 71.
The Federal Court, never given to liberalism in administrative law,
especially immigration law, was not receptive. In Singh17 and Vincent v.
Minister of Employment and Immigration8 it excluded refugee status from
even potential interest under section 7 of the Charter because the threat to
life, liberty or security of the person existed outside Canada. The Charter
would thus apply to prevent arbitrary action inside the country, but not to
stop our collaboration with such action abroad even in the event that it
became flagrant. Fortunately, the Supreme Court in Singh reversed and held
invalid the power to refuse to entertain an application for redetermination
12See Kwiatkowsky, supra, note 9 at 863-64.
13See especially the remarks of Le Dain J. in the Federal Court of Appeal in Kwiatkowski
v. Immigration Appeal Board (1980), 34 N.R. 237. See also, at the Supreme Court level, the
care taken by Wilson J. to make certain that no more stringent test was adopted: Kwiatkowsky,
supra, note 9.
141bid.
15Especially since the Department has shown great reluctance to legislate where an injustice
against the applicant exists. It is ever vigilant to correct perceived injustice against itself.
16That is in part why a mandate was given to Rabbi G. Plaut to study the question of
refugees. He produced a masterly Report which points out the imperative of an oral hearing
at least once for every applicant: Report to the Minister of Employment and Immigration,
Refugee Determination in Canada by W.G. Plant (Hull, Que.: Supply & Services Canada, 17
April 1985). It is doubtful, however, that without Singh the Department would have planned
the swift reform which it is now about to promulgate.
17Reported from the Federal Court of Appeal as Singh v. Minister of Employment and
Immigration (1983), [1983] 2 EC. 347, 144 D.L.R. (3d) 766, 47 N.R. 189.
18(1983), 148 D.L.R. (3d) 385, 48 N.R. 214 (EC.A.D.).
McGILL LAW JOURNAL
[Vol. 31
given to the Immigration Appeal Board by the legislation. The two judg-
ments in the Supreme Court found very different grounds 19 for their con-
clusions, but the result was not in doubt. Henceforth, every applicant for
refugee status was going to get at least one oral hearing, compatible with
the importance of the refugee issue.20
There is no doubt that, at least initially, the Department was left with
an unbearable backlog and administrative chaos. All present applicants,
most of whom would have been eliminated, will have to be heard. Some
cases already settled by exclusion orders have been revived by the Federal
Court and added to the list to be heard.21 However, the’ inconvenience can
never outweigh the previous danger of error. If the Department devises a
new hearing scheme, as it has promised to do, it will have to respect the
Singh requirement of one full oral hearing.22
The backlog will inevitably be alleviated by another judicial reform of
immigration law, Jiminez-Perez v. Minister of Employment and Immigra-
tion,23 in which subsection 115(2) of the Immigration Act, 1976 was invoked
to give every person the right to apply for exemption from the rule that
immigrant status could only be sought outside Canada. No one obtained a
right to exemption, but there was at least a right to be considered. 24 Refugee
status will thus cease to be the straw to be clutched by desperate people
with good grounds for remaining here other than those covered by the
definition of “refugee”. The relaxation of the irrational rule which in the
past had ordained the temporary but often protracted separation of spouses
accompanying text.
19See the discussion of the Charter and the Canadian Bill of Rights, infra, note 31 and
20See the decision of Beetz J. in Singh, supra, note 1 at 231:
Again, I express no views as to the applicability of the Charter of Rights and
Freedoms, but I otherwise agree with these submissions: threats to life or liberty by
a foreign power are relevant, not with respect to the applicability of the Canadian
Bill of Rights, but with respect to the type of hearing which is warranted in the
circumstances. In my opinion, nothing will pass muster short of at least one full
oral hearing before adjudication on the merits.
21Nsilulu v. Minister of Employment and Immigration (23 July 1985) A-639-85 (EC.A.D.).
The essence of this case is that the order had not been executed and the matter was not moot.
The Federal Court allowed Nsilulu to make a s. 28 application outside the delays.
22At present, the final application under s. 45 of the Immigration Act, 1976 fails the test
because the applicant never meets his judges and has no direct contact with them. Until Singh
the redetermination process was tainted by the screening under s. 71.
23(1982), [1983] 1 EC. 163, 45 N.R. 149 (A.D.), aff’d [1984] 2 S.C.R. 565, 14 D.L.R. (4th)
609.
24 But not, it seems, the right to a delay to get a reply prior to removal: Green v. Minister
of Employment and Immigration (1983), [1984] 1 EC. 441, 49 N.R. 225 (A.D.). One could
have hoped for a different result after Ramawad v. Minister of Manpower and Immigration
(1977), [1978] 2 S.C.R. 375, 81 D.L.R. (3d) 687 and it is possible that the Supreme Court will
be asked to consider this issue in the future.
19861
COMMENTS
is also certain to reduce the bogus claims. Those that are not pure fabrication,
whether or not they are likely to succeed, merit careful study.
It would probably be incorrect to suggest that no way of dealing with
purely frivolous appeals was possible in Canada’s constitutional context. It
is quite conceivable that if Kwiatkowsky had imposed less stringent require-
ments for a hearing,25 Singh would have been differently decided. It certainly
would have been a far less urgent matter. Many courts, whether first instance
or appellate, have provisions for dismissing dilatory, frivolous or abusive
cases. 26 Even where life, liberty or security of the person is concerned, such
provisions are not necessarily unconstitutional so long as they are limited
to things manifestly untenable. It was the breadth of section 71 which made
it dangerous and which led to its undoing.27
One hopes that this will lead to a new respect for common sense in
immigration law.28 Too often, decisions affecting people’s lives have been
made on a purely technical basis. There was thus little correlation between
cases which succeeded before the courts and cases which, in equity, merited
victory. The trend in administrative law has been away from technicalities. 29
The Charter provides an opportunity for this trend to be extended to areas
where a tradition of strict statutory construction has developed. Immigration
law is such an area.30 Singh shows us that, in the future, the questions which
25i.e. “a reasonably arguable case”.
26See, e.g., the Quebec Code of Civil Procedure, R.S.Q. c. C-25, arts 50 and 75.1; and the
Ontario Judicature Act, R.S.O. 1980, c. 223, s. 32.
even more than it had to be –
27The lesson is that the Department was too greedy –
and
an analogy arises with respect to the misuse of privative clauses by the Quebec government
in the 1960s which led to their constitutional limitation by the courts: A.G. Quebec v. Farrah
(1978), [1978] 2 S.C.R. 638, 86 D.L.R. (3d) 161, 21 N.R. 595; and especially Crevier v. A.G.
Quebec (1981), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1, 38 N.R. 541 [hereinafter Crevier].
28The common sense approach is evident in another decision, Howard v. Presiding Officer
of the Inmate Disciplinary Court of Stony Mountain Institution (1985), [1984] 2 EC. 642 at
663, (sub nom. Re Howard and Presiding Officer of the Inmate Disciplinary Court of Stony
Mountain Institute) 19 D.L.R. (4th) 502, (sub nom. Howard v. Stony Mountain Institution
Inmate Disciplinary Court (Presiding Officer)) 57 N.R. 280 (A.D.), where Thurlow C.J. said:
[Ilt appears to me that whether or not the person has a right to representation by
counsel will depend on the circumstances of the particular case, its nature, its gravity,
its complexity, the capacity of the inmate himself to understand the case and present
his defence.
29See Minister of National Revenue v. Coopers and Lybrand (1978), [1979] 1 S.C.R. 495, 92
D.L.R. (3d) 1 [hereinafter Coopers and Lybrand]; Wiseman v. Borneman (1969), [1971] A.C.
297, [1969] 3 All E.R. 275 (H.L.) [hereinafter Wiseman].
301n fact, both in Canada and the U.K., immigration is an area where, generally, government
policy has tended to win out over individual rights. See, for instance, the result in Minister of
Manpower and Immigration v. Hardayal (1977), [1978] 1 S.C.R. 470, 76 D.L.R. (3d) 465 and
even that in Re H.K. (1966), [1967] 2 Q.B. 617, [1967] 2 W.L.R. 962. Both cases are often
quoted for their liberal dicta, but this did not help the applicants.
REVUE DE DROIT DE McGILL
[Vol. 31
will be asked will pertain not only to the wording of the act, but also to the
nature and importance of the individual rights involved and the conse-
quences for the individual.
B. The Charter
At first blush it seems strange to consider Singh a significant devel-
opment in Charter law. Three of the six judges chose to anchor their judg-
ment in the old Canadian Bill of Rights. Only three invoked the Charter.3 l
In view of this uncertainty, one could well discount the technical side of
the judgment as too uncertain to be followed.
However, this attitude is too facile. It must be remembered that the
two judgments are not contradictory. Both the Charter and the Bill ofRights
can have the same effect. Neither Judge disapproves of the other’s approach,
they only choose different ones. It follows, surely, that except before the
Supreme Court, both judgments must stand as authority32 and should be
applied.
Secondly, the Charter has had, as one of its effects, the revival of interest
in other human rights documents, such as the Bill of Rights and provincial
(unentrenched) Charters. In Ford v. A.G. Quebec,33 for example, Boudreault
J. applied the same standards of freedom of expression under Quebec law
as would obtain under the Charter. In other provinces, too, there has been
much activity under provincial Charters.34 Similarly, the old and once
moribund35 Bill of Rights has acquired new vigour.36 If it was not argued
31Beetz J., with whom Estey and McIntyre JJ. concurred, wrote the judgment based on the
Canadian Bill of Rights, Part I of An Act for the Recognition and Protection of Human Rights
and Fundamental Freedoms, S.C. 1960, c. 44, reprinted in R.S.C. 1970, App. III [hereinafter
the Bill of Rights]; Wilson J., with whom Dickson C.J.C. and Lamer J. concurred, applied the
Charter.
32It is disturbing that, in daily discussions, the Department seems intent on considering only
Beetz J.’s opinion as authoritative and treats the other almost as a minority view. Both opinions
are of great value and they should be considered together and not pitted against each other.
33(1984), [1985 C.S. 147.
34See, e.g., the use of the Manitoba Human Rights Act, S.M. 1974, c. 65, in Winnipeg School
Division No. I v. Craton (1985J, [1985] 2 S.C.R. 150, 61 N.R. 241, and the use of the Alberta
Individual’s Rights Protection Act, R.S.A. 1980, c. 1-2, in Cormier v. Alberta Human Rights
Comm’n (1984), 33 Alta L.R. (2d) 359 (Q.B.).
35See Bliss v. A.G. Canada (1978), [1979] 1 S.C.R. 183, 92 D.L.R. (3d) 417; A.G. Canada v
Lavell (1973), [1974] S.C.RL 1349, 38 D.L.R. (3d) 481.
36See P. Calamai, “Right that Saved Former MP from Tribunal’s Fine Lost to Woman who
‘Fiddled away Precious Time’ National (November 1985) 18, where the author wrote:
In Singh, Mr Justice Jean Beetz, writing for himself and judges Willard Estey and
William McIntyre, elevated the Bill of Rights from a mere instrument of interpre-
tation into a quasi-constitutional document, an achievement that had eluded the
late Chief Justice Born Laskin.
1986]
CHRONIQUE DE JURISPRUDENCE
in Kwiatkowsky, it was because it appeared to be a hopeless argument at
that time. In Singh it was also not initially raised, but the Court brought it
up proprio motu. Whether or not one can reconcile Beetz J.’s judgment with
the previous jurisprudence under the Bill ofRights, almost all of it opposed
to judicial activism, it is virtually certain that the Bill of Rights argument
would not have succeeded in 1982 and definitely not before 1980. Thus
Beetz J. raises serious doubts as to the continued correctness of the old
cases; he in no way weakens the Charter, or its effect by his failure to raise
it. Indeed, if a problem can be solved without recourse to the Constitution,
it is established and not necessarily bad practice to solve it that way.37 Thus,
the only conclusion one can draw is that, in many cases, the Bill of Rights
will have the same effect as the Charter and the Charter arguments may
not have to be argued as such. Although this was clearly not intended, a
more “liberal” result can be reached through Beetz J.’s judgment than through
Wilson J.’s, since paragraph 2(e) of the Bill of Rights is not, unlike section
7 of the Charter, limited to threats to “life, liberty and security of the person”
but applies to all determinations of “rights” and “obligations”. All the debates
about “single right” or “several rights” under section 738 become utterly
unnecessary.
Wilson J.’s judgment is a direct application of the Charter. It is signif-
icant for its support of a broad interpretation of the words “security of the
person”. 39 However, its most compelling feature is its treatment of section
1 and the argument that administrative convenience can outweigh the rights
guaranteed under the Charter.
Certainly the guarantees of the Charter would be illusory if they could be
ignored because it was administratively convenient to do so. No doubt con-
siderable time and money can be saved by adopting administrative procedures
which ignore the principles of fundamental justice but such an argument, in
my view, misses the point of the exercise under section 1. The principles of
natural justice and procedural fairness which have long been espoused by our
courts, and the constitutional entrenchment of the principles of fundamental
justice in section 7, implicitly recognize that a balance of administrative con-
venience does not override the need to adhere to these principles.40
If administrative convenience were sufficient, the government could
override Charter rights at will and could almost always find a convincing
explanation for its policies in terms of administrative considerations. Singh
will state at the outset that he prefers the Charter as the basis for the invalidity of s. 71.
37See Glassco v. Cumming (1978), [1978] 2 S.C.R. 605, 22 N.R. 271. Nevertheless this writer
38See the judgment of Wilson J. in Singh, supra, note I at 202ff. See also Collin v. Lussier
(1983), [1983] 1 EC. 218 (T.D.), a decision much maligned prior to Singh but justly vindicated
in it for a commendable approach towards s. 7.
39See Singh, ibid. at 206-7. In the end, the matter is not finally decided.
40Ibid. at 218-19.
McGILL LAW JOURNAL
[Vol. 31
is thus the strongest of a series of cases demonstrating that once a breach
of the Charter is proved, it is not easy to persuade the courts that it is
justified under section 1.41
C. Administrative Law
Like so many Charter cases, 42 Singh has an application in general
administrative law.
Administrative law was separated from constitutional law in the early
years of this century; now it is becoming increasingly constitutional. In
Crevier43 judicial review was recognized as a constitutional right under sec-
tion 96 of the Constitution Act, 1867.44 Now section 7 of the Charter and
paragraph 2(e) of the Bill of Rights are adding to the constitutional nature
by entrenching a concept of “fundamental justice”. Fundamental justice has
been compared to natural justice. 45 The similarity is enhanced by Beetz J.’s
description of it, so redolent of the continuum of Coopers and Lybrand 46
The most important factors in determining the procedural content of fun-
damental justice in a given case are the nature of the legal rights at issue and
the severity of the consequences to the individuals concerned. 47
The conclusion is that, at least for matters having serious consequences,
judicial review is not only a matter of custom and not a mere presumption,
but is a right not to be taken away save by the clearest language and pre-
sumably for compelling cause.
A second major issue of administrative law in Singh is the troublesome
distinction between “rights” and “privileges”. In Martineau v. Matsqui Insti-
tution Disciplinary Board Dickson J. wrote:
There has been an unfortunate tendency to treat “rights” in the narrow sense
of rights to which correlative legal duties attach. In this sense, “rights” are
frequently contrasted with “privileges”, in the mistaken belief that only the
former can ground judicial review of the decision-maker’s actions. One should,
41See Quebec Association of Protestant School Boards v. A.G. Quebec (1982), [1982] C.S. 673,
140 D.L.R. (3d) 33, aff’d (1983), [1983] C.A. 77, aff’d (1984), [1984] 2 S.C.R. 66, 10 D.L.R.
(4th) 321; R. v. Therens (1985), [1985] 1 S.C.R. 613, 18 D.L.R. (4th) 655; Plantation Indoor
Plants Ltd v. A.G. Alberta (1985), [1985] 1 S.C.R. 366, 58 N.R. 255.
42See especially Operation Dismantle Inc. v. R. (1985), [1985] 1 S.C.R. 441, 18 D.L.R. (4th)
481. See also D.P. Jones & A.S. de Villars, Principles ofAdministrative Law (Toronto: Carswell,
1985) at 191.
43Supra, note 27.
44(U.K.), 30 & 31 Vict, c. 3 (formerly British North America Act, 1867).
45See Jamieson v. R. (1982), 142 D.L.R. (3d) 54, 70 C.C.C. (2d) 430 (Que. Sup. Ct), Durand
J.
46Supra, note 29.
47Supra, note 1 at 229.
1986]
COMMENTS
I suggest, begin with the premise that any public body exercising power over
subjects may be amenable to judicial supervision … .48
Nevertheless, some judges have continued to invoke the distinction
between rights and privileges, derived from R. v. Electricity Comm’rs,49 as
a reason for refusing judicial review for all matters characterized as mere
privileges. 50 Such a distinction rests in the fallacy that “mere privileges”
exist in public law. We learned in Roncarelli v. Dyplessis5′ that no untram-
melled discretion is ever found. If this is so, every “privilege” necessarily
implies a right to be considered. Therefore decisions about reviewability
cannot depend on a distinction between “rights” and “privileges” but rather
on the importance of the rights involved.52
Wilson J. raised this problem:
It must be recognized that the appellants are not at this stage entitled to
assert rights as convention refugees; their claim is that they are entitled to
fundamental justice in the determination of whether they are convention ref-
ugees or not.53
She went on to say:
The creation of a dichotomy between privileges and rights played a sig-
nificant role in narrowing the scope of the application of the Canadian Bill of
Rights[54] … I do not think this kind of analysis is acceptable in relation to
the Charter…. Given the potential consequences for the appellants of a denial
of that status if they are in fact persons with a “well-founded fear of perse-
cution”, it seems to me unthinkable that the Charter would not apply to entitle
them to fundamental justice in the adjudication of their status. 55
48 (1979), [1980] 1 S.C.R. 602 at 618-19, (sub nom. Martineau v. Matsqui Institution Dis-
ciplinary Board No. 2) 106 D.L.R. (3d) 385 [hereinafter Martineau]. This position was also
expressed in R. v. Board of Visitors of Hull Prison (1978), [1979] 2 W.L.R. 42, [1979] 1 All
E.R. 701 (C.A.). See also R. v. Criminal Injuries Compensation Board ex parte Lain (1967),
[1967] 2 Q.B. 864, [1967] 1 All E.R. 770.
49(1923), [1924] 1 K.B. 171, [1923] All E.R. 150 (C.A.). It is unlikely that this decision was
intended to make judicial review as difficult as its subsequent use made it. See comments on
it in Ridge v. Baldwin (1963), [1964] A.C. 40, [1963] 2 All E.R. 66 (H.L.).
50See, e.g., Siclait v. Minister of Manpower and Immigration (24 September 1979) T-5569-
78 (EC.T.D.); Charlebois v. Barreau du Quebec (1982), [1983] C.S. 177.
51(1959), [1959] S.C.R. 121, 16 D.L.R. 689, Rand J.
52See Wiseman, supra, note 29. After this case, Martineau, supra, note 48 and A.G. Quebec
v. A.G. Canada (1978), [1979] 1 S.C.R. 218, 24 N.R. 1, it is difficult to justify the continued
use of the distinction.
53Singh, supra, note 1 at 208. It is to be noted that although Beetz J. at times uses the
conservative rights/privileges dichotomy, this statement clearly applies to his judgment as well.
His “rights” cannot mean more than rights to be considered for certain rights which accrue
to Convention refugees.
54But this may be changed after the judgment of Beetz J. in Singh.
55Singh, supra, note 1 at 209-10.
REVUE DE DROIT DE McGILL
[Vol. 31
In other words, the new, common sense approach towards administra-
tive law in which old distinctions and procedural refinements are to give
way to considering the merits and the consequences 56 has been emphatically
reaffirmed at least for cases involving basic rights.
Only in one way does Singh preserve a certain degree of proceduralism
in its treatment of section 24 of the Charter. Wilson J. expressed the
–
following opinion:
Section 24(1) of the Charter provides remedial powers to “a court of com-
petent jurisdiction”. As I understand this phrase, it premises the existence of
jurisdiction from a source external to the Charter itself.5 7
In previous pages, she used the words “broad, remedial powers” to
describe section 24. It follows that once a court has jurisdiction from a
source outside the Charter it is not bound by other procedural limitations
contained in that source. 58
It has not been decided whether the principle of Canada Labour Rela-
tions Board v. Paul L’Anglais Inc.59 applies to Charter matters, so that the
provincial superior court would always have jurisdiction. They would go a
long way in eliminating the remaining procedural limitations.
Conclusion
Singh is a major step forward in immigration law, human rights law
and administrative law. However, it is an early decision under the Charter
and necessarily leaves many unanswered questions. The split in the Court
is not significant because both judgments can stand together. The future will
show whether the promise of a system in which all important issues are
dealt with in accordance with fundamental justice and in which common
56Coopers and Lybrand and Wiseman, supra, note 29; Furnell v. Whangarei High Schools
Board (1972), [1973] A.C. 660, [1973] 1 All E.R. 400 (PC.); Vachon v. A.G. Quebec (1978),
[1979] 1 S.C.R. 555, 25 N.R. 399.
57Singh, supra, note 1 at 222. See also Law v. Solicitor General of Canada (1984), 11 D.L.R.
(4th) 608, 57 N.R. 45 (EC.A.D.), where the Immigration Appeal Board was held to be such a
court.
58For instance, a provincial superior court exercising habeas corpus powers against a federal
body would no longer have to worry about its lack of power to issue certiorari in aid, if the
Charter were in issue. It would do everything required under s. 24 provided it had initial
jurisdiction.
59(1983), [1983] 1 S.C.R. 147, 146 D.L.R. (3d) 202. See also J.H. Grey, “Section 96 to 100:
A Defence” (1985) 1 Admin. L.J. 3. The principle in question is that the provincial superior
courts always have jurisdiction to decide questions of constitutional validity. There is no reason
why the Charter would not be included among constitutional issues. Charter matters were
deemed constitutional for purposes of locus standi: Minister of Justice of Canada v. Borowski
(1981), [1981] 2 S.C.R. 575, 130 D.L.R. (3d) 588, following Thorson v. A.G. Canada (1974),
[1975] 1 S.C.R. 138, 43 D.L.R. (3d) 1.
1986]
CHRONIQUE DE JURISPRUDENCE
507
sense and justice prevail over technicalities and procedural niceties will be
fulfilled.
