Canada (Citizenship and Immigration) v. Oberlander, docket T-866-95

     T-866-95

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Applicant,

     and

     HELMUT OBERLANDER,

     Respondent.

     REASONS FOR ORDER

NOËL, J.:

     On October 16, 1997, I directed that a hearing be held to hear the submissions of counsel as to how the three outstanding motions in this matter ought to proceed. The hearing was held on October 23, 1997. Mr. Vita who is counsel of record appeared on behalf of the applicant. Mr. McGee who is counsel of record for the respondent was present, but Mr. Code who described himself as Mr. McGee's agent for pre-trial motions made the representations on behalf of the respondent.

     Mr. Vita indicated that he was in a position to proceed with his motion for directions and indicated his availability for the week of December 8, 1997. Mr. Code agreed with this suggestion and Mr. McGee indicated that he was available as well.

     With respect to the respondent's motion for disclosure which has been outstanding since June 15, 1995, Mr. Code took the position that it should be kept in abeyance as the applicant was currently providing him with facts and information and that this process could resolve some or all of the outstanding disclosure issues. Mr. Vita confirmed that disclosures were being made, and on that basis I am willing to allow this process to run its course for a short period of time before compelling the respondent to proceed with his motion.

     The third motion has also been outstanding since the middle of 1995. In it, the respondent asks for a stay of proceedings on the ground that, having regard to the allegations made against him, the government was legally bound to proceed under the Criminal Code. Mr. Code indicated that he intended to withdraw this motion provided that this could be done without prejudice to his right to bring it on again at some future time. He explained that he expects to be in a position to raise two additional grounds to stay the present proceedings and that he would prefer proceeding at once with all three grounds.¹ Although he recognized that each of the grounds could independently justify the issuance of a stay, he expressed the view that his case would be better put if all three grounds were argued at once.

     The problem with this suggestion from the Court's perspective is that counsel for the respondent is not now in a position to raise those two additional grounds for a stay whereas the outstanding motion is ready to proceed.

     Mr. Code tried to explain that although the motion as framed is ready to proceed, it would be unfair to set it down now. He suggested that despite the wording of the motion, Mr. McGee who drafted and filed it intended to rely on materials yet to be disclosed and which had been sought in correspondence addressed to counsel for the applicant from counsel for the respondent in the Tobiass matter (T-569-95) and the Dueck matter (T-938-95). He suggested that since Mr. McGee proceeded in good faith on the assumption that he would have the disclosure sought by the respondents in these other proceedings before arguing his motion, it would be unfair to proceed with the stay motion now since some of the information remains to be disclosed.

     This is totally inconsistent with the record in this file and in the Tobiass and Dueck files. The only correspondence to which Mr. Code could conceivably have been referring consists of three letters dated June 30, July 7 and July 19, 1995. In these three letters, counsel for Messrs. Tobiass and Dueck request from the applicant specified information and documents said to be essential to the stay motion which they intended to bring.

     The original stay motion brought by Mr. McGee on July 31, 1995, in this case did seek as a basis for making it the disclosure that had been sought in these other matters by specific reference to the said letters. On August 3, 1995, however, Mr. McGee amended his motion for the sole purpose of eliminating any reference to disclosure pursuant to these letters or to any undisclosed evidence stemming from the applicant. Obviously, Mr. McGee did so because, after considering the matter, he came to the view that he did not need anything more to advance his motion. The suggestion by Mr. Code that Mr. McGee thereafter continued to rely on undisclosed facts is simply not tenable and indeed, Mr. McGee, when asked to state his position, chose to say nothing. It is clear to me that nothing untoward would result if Mr. McGee's motion were to be dealt with now.

     In my view, if counsel for the respondent believe that the proceedings ought to be stayed on the ground that has been asserted in the outstanding notice of motion, they should proceed with it now. If they believe that this ground cannot support the grant of a stay, they should withdraw it. However, I am not willing to allow the motion to be withdrawn without prejudice to the respondent's right to raise the same ground again at some future point in time as is being asked. That would by necessity perpetuate delay and prevent the disposition of an issue that is ready to be decided.

     Furthermore, as the motion is susceptible of bringing this matter to an end, I believe that it should proceed before the applicant's motion for directions. The motion for a stay will therefore be heard on December 9, 1997, for a period of two days, based on counsel's stated requirement. The motion for directions by the applicant will be scheduled after a decision is rendered on the stay motion, if this remains necessary.

     This does give rise to the possibility that the applicant's amended motion for directions in the Dueck and Tobiass references may be decided before this same motion is argued in this case. To the extent that Mr. Code believes that this could be prejudicial to his position because decisions affecting his case could be reached on these motions without the Court having the benefit of his argument,

he should consider seeking leave to intervene in the hearing of the applicant's motion for directions in the Dueck matter which has been set to be heard singly on December 11, 12 and 15, 1997.²

     Marc Noël

     Judge

Ottawa, Ontario

October 28, 1997

¹      The first of these two other grounds relates to the destruction of documents pertaining to the respondent's initial entry into Canada and his subsequent acquisition of Canadian citizenship. The respondent maintains that the destruction of these documents undermines his right to mount a defence in these proceedings such that a stay of proceedings is warranted.          The second of these two other grounds relates to a trip to gather evidence organized by the applicant in the spring of 1996. Representatives of the applicant accompanied by a member of the Ontario Judiciary travelled to Eastern Europe in order to interview potential witnesses. This trip took place without notice to the respondent. An abuse of process warranting a stay of proceedings is said to arise from these events.

²      If counsel for the respondent decides to seek leave to intervene, Rule 1611 should be referred to by analogy. A notice of application for leave to intervene should be filed, identifying the intervening party's interest, the scope of the proposed intervention, and the means sought to advance it (i.e. by oral and/or written representations). Such an application, if it is to be made, should be brought forthwith.