search6searchIsexinsex%20board%20%C5%B7%C3%C0%B3%C9%C8%CB%CE%DE%C2%EB%D4%AD%B4%B4%C7%F8%20-a file%7CFangyuanli%2520-%2520Jfyg-059%2520%25E9%25BB%2592%25E3%2582%25B9%25E3%2583%2588%25E3%2581%25AE%25E4%25BC%25BC%25E5%2590%2588%25E3%2581%2586%25E3%2582%25AD%25E3%2583%25A3%25E3%2583%25AA%25E3%2582%25A2%25E3%2582%25A6%25E3%2583%25BC%25E3%2583%259E%25E3%2583%25B3%2520%25E9%259B%25A8%25E5%25AE%25AE%25E7%259C%259F%25E8%25B2%25B4%2520%28%25E9%25BB%2591%25E7%25B5%25B2%29.avi%7C1190838686%7CF034311D427DE081E03E5D408808586F%7Ch%3DYC5BJDWM53Q5XDZT2X4LQ4WOFHHV5A7W%7C%2F+ Szh isearcht Www e Length b Szh t Szh msearchrsearch Quickwpthemes r Quickwpthemes ub Szh esearch Length y Length t Szh e Www w Www ysearchCa Www a Szh i Www n Szh f Length ic Length asearchs nesearchrBittorrent%20Sectiong Length tsearchd Www T Www o Quickwpthemes M Length Quickwpthemes n Length Sh1nsearchhsearchi Quickwpthemes i Www e Szh msearch searcho Length le Quickwpthemes guVDD045 Length u Length t Www csearch Length aKasearch, Szh Isearcht Szh i Szh k Www tsearchis wa Www searchf Length pr Length c Szh e Quickwpthemes isearchgw Length stypecho%20mistylookmo Www t Quickwpthemes nap Quickwpthemes r Quickwpthemes pr Www a Www e Www Szh o sa Length y Www Quickwpthemes t Szh h Www e Szh Quickwpthemes leassearcht Www .search searchA%D1%C7%D6%DE%D3%D0%C2%EB%B1%A1%C2%EB%C7%F8%20sexinsexn Szh d Www Length itsearch Szh isearchssearch c Www e1rsearchtaisearchnsearchlysearch searchn...+Western+Rips+Section%7C+%C5%B7%C3%C0%CE%DE%C2%EB%C7%F8%28%D0%A1%D3%DA500M%29+-+SexInSex%21+Boar+osearch de Quickwpthemes fesearchncsearche Www Www tsearcho Www ar Quickwpthemes gue, Www lsearchik Length e Szh co Szh usearchnsel Length f Www o Length r Szh Length the Quickwpthemes Minis Quickwpthemes ter Www d Szh id, searchtsearchhsearcha Www t Tao M Szh i&# Szh 8217 Szh ;s interrogation statement was fully voluntary and simply confirmed what she had said in her original testimony. What else could be expected, with a Chinese state official present in the room? Even if she was tortured or coerced into making false accusations in her first statement, the circumstances of the interrogation made it virtually impossible to discuss. That being said, I do not think that an informed person, viewing the matter realistically and practically, would use this event to draw a negative conclusion about the PRRA officer’s impartiality. Indeed, the reason she assigned little weight to Tao Mi’s purported recantation was not because of anything she said in her interrogation at the Canadian Consulate. Rather, the officer concluded there was insufficient direct and convincing evidence to corroborate that Tao Mi did in fact meet with the Canadian lawyer, and did retract statements she made implicating the Lais of smuggling.

67 The Lais’ basic argument is that the PRRA officer could not assess the diplomatic note independently because she had to restrict her findings to whatever counsel for the Minister had submitted to the Board in 2001. I find this argument unpersuasive for a number of reasons.

68 It is by now well established that Ministers are not expected to personally exercise all the powers endowed to them by Parliament. A power to delegate is usually implicit in a legislative scheme empowering a Minister to act: R. v. Harrison (1976), [1977] 1 S.C.R. 238 (S.C.C.). This authority to delegate has been spelled out explicitly in the IRPA, of which subsection 6(2) provides that anything the Minister may do under the Act may be delegated in writing. The Minister has done so with respect to her authority under section 112 to decide PRRA applications (Delegation Instrument, December 12, 2005, Item 52).

69 While the notion that a department’s civil servants speak with one voice and are essentially the Minister’s mouthpiece may have held true in a distant past, it is highly unrealistic in today’s complex and multi-faceted reality. Modern-day governmental departments are huge organizations, with thousands of employees assigned to varied and numerous functions. While any given minister of the Crown still retains the ultimate responsibility for his department’s policies and practices, no one expects him to oversee every decision falling within every single mandate comprising his portfolio. In carrying out their day-to-day responsibilities, officials of one particular unit are not necessarily bound by decisions made by other officials in a different context. As the PRRA officer aptly put it at page 4 of her decision, it would be “a reductionist and monolithic view of the Minister’s varying responsibilities and mandates” to reduce the role of the PRRA officer “to that of concurring in any previous decision in which another delegate of the Minister made representations”.

70 This is reinforced by looking at section 5.14 of the PRRA Manual, which directs those officers to bear the following in mind as they make their decisions:

It is important to show that PRRA officers have carefully analyzed the case, weighed all of the evidence, and balanced the treatment they have given to the evidence considered. The decision should be based on the evidence presented and researched, supported by the factual weight of the evidence itself. The decision should not be based on any preconceived bias or information. The research should be fresh and show that the PRRA Officer has addressed the individual case. Each applicant in the PRRA process is entitled to a fully independent assessment of the facts.

71 This is precisely what the PRRA officer did in the case at bar. After having carefully reviewed the Lais’ arguments alleging that her decision was predetermined, she wrote at page 3 of her decision:

Counsel would have it that given that the Minister’s representatives at the time of the applicants’ CRDD hearing made submissions relating to the value of the diplomatic assurances given by the government of the People’s Republic of China to the Government of Canada, that the pre-removal risk assessment process is fatally flawed and that no independent and unbiased decision can be made by a Pre-Removal Risk Assessment Officer. To accept such an argument would be tantamount to arguing that there can be no question of more than one mandate within the Department of Citizenship and Immigration. In response, I note that while all employees of the department are charged with the responsibility of administering and applying the objectives of the act in general, there can be varying and competing, even conflicting mandates in doing so.

72 I find this reasoning unimpeachable. The Minister’s dual mandates of intervention and protection in 2001 did not give rise to a reasonable apprehension of institutional bias, so long as each unit acted within its statutory mandate. This is precisely the issue that the Supreme Court considered in Barry v. Alberta (Securities Commission), [1989] 1 S.C.R. 301 (S.C.C.). Writing for the Court, Justice Claire L’Heureux-Dubé stated at page 309:

As with most principles, there are exceptions. One exception to the “nemo judex” principle is where the overlap of functions which occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue.

73 Counsel for the applicants tried to distinguish that case on the basis that the PRRA officer has no statutory or regulatory authority, and does everything in the name of the Minister. To use counsel’s words, Barry, above, was about an overlapping of institutional functions, not a coincidence of positions. With all due respect, this is a distinction without difference. It is true that the Alberta Securities Commission was statutorily created, while PRRA officers only have delegated authority. But to me, it seems the principle enunciated in Barry, above, does not hinge upon the nature of the instrument underlying the decision-maker’s existence. If the Minister herself has been authorized to intervene at Board hearings and to decide PDRCC applications, certainly her delegates must have the same authority. The risk of being contaminated by a previous decision is surely minimized when two different units are tasked with different responsibilities, as opposed to the same person doing both.

74 In coming to this conclusion, I am comforted by the decision reached by my colleague Justice Frederick Gibson in Say v. Canada (Solicitor General), 2005 FC 739 (F.C.) (aff’d, 2005 FCA 422 (F.C.A.)). In that case, the applicants had raised the issue of institutional bias or lack of independence on the part of the PRRA officers because they were (for a short period of time) organizationally situated within the Canada Border Services Agency, along with removal officers. After examining the evidence, Justice Gibson concluded the PRRA unit was structured in such a way that it was insulated from other sections of the CBSA, so that a right-minded and informed individual would not have a reasonable apprehension of bias. At paragraph 39 of the decision, he wrote:

On the evidence before the Court in this matter, I conclude that there would not be a reasonable apprehension of bias, in the mind of a fully informed person, in a substantial number of cases. That is not to say that there could not well be a reasonable apprehension of bias, as a matter of first impression, in the mind of a less than fully informed person, in a substantial number of cases. The mandate of the CBSA was portrayed in the substantial amount of public information surrounding its establishment as a security and enforcement mandate, a mandate quite distinct from a “protection” mandate. But the evidence before the Court indicates that its mandate was, at least in the period in question, rather multifaceted and that there was a conscious effort to insulate the PRRA program from the enforcement and removal functions of the CBSA. Thus, I conclude that a “fully informed person” would not have a reasonable apprehension that bias would infect decision makers in the PRRA program in a “…substantial number of cases”.

75 There is no evidence before me that this finding does not hold true anymore. PRRA officers are professional decision-makers, undoubtedly very much aware that their decisions are subject to the constraints imposed upon each and every decision made on a quasi-judicial basis. I have no reason to believe that the PRRA officer did not do what she set out to do in the case at bar, and did not approach this particular PRRA application with an open mind. Even assuming the diplomatic note was a key aspect of the risk assessment, she was not barred from looking at all the evidence that was available to her. There is no indication suggesting she simply stopped once she saw the evidence of the Minister’s submissions to the Board in 2001. As much as one may disagree with her findings, I do not think a fair minded person, well apprised of the facts and having thought the matter through, would think that it is more likely than not that the PRRA officer would not decide the matter fairly.

76 That being the case, there is no need to look at the constitutional argument based on section 7 of the Charter. There being no reasonable apprehension of bias, either from an institutional or from an individualized point of view, there can be no infringement of the principles of fundamental justice. By the same token, it is unnecessary to canvass the applicants’ proposed solutions. I shall only venture to say that this Court has no jurisdiction to determine a PRRA application, nor can section 24 of the Charter be a source of such jurisdiction. This Court’s jurisdiction is supervisory, and it cannot assume jurisdiction which Parliament has not granted it: Ontario v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 (S.C.C.); Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177 (S.C.C.).

b) The absence of an oral hearing