Date: 20090619
Docket: T-1162-07
Citation: 2009 FC 647
Ottawa, Ontario, June 19, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
LEAGUE FOR HUMAN RIGHTS OF
B’NAI BRITH CANADA
Applicant
and
HER MAJESTY THE QUEEN,
THE ATTORNEY GENERAL OF CANADA
and WASYL ODYNSKY
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by the League for Human Rights of B’nai Brith Canada (B’nai Brith)
challenging the lawfulness of Order in Council No. P.C. 2007-804 rendered by
the Governor in Council (GIC) on May 17, 2007. In that decision, and
notwithstanding the recommendation of the Minister of Citizenship and
Immigration (Minister), the GIC declined to exercise the power conferred upon
it by s. 10 of the Citizenship Act, R.S.C. 1985, c. C-29 (Act) to revoke
the Canadian citizenship of the Respondent, Wasyl Odynsky. This decision is
challenged by B’nai Brith on the basis that the GIC exceeded its authority by
taking into consideration matters which were outside the scope of s. 10 of the
Act and, in particular, evidence concerning the personal circumstances of
Mr. Odynsky. B’nai Brith contends that the only matter that the GIC could
lawfully consider was whether Mr. Odynsky obtained his Canadian
citizenship on the strength of a material misrepresentation. This argument is
based on the language of s. 10 which states that a person ceases to be a
citizen where the GIC, on a report from the Minister, is satisfied that
citizenship was obtained by false representation or fraud or by knowingly
concealing material circumstances. Since the Federal Court had conclusively
made a finding of material misrepresentation against Mr. Odynsky in a
reference proceeding brought under s. 18 of the Act, B’nai Brith says that the
GIC had no option but to issue an order for revocation of his citizenship. In
addition, B’nai Brith challenges the GIC to decision under s. 7 of the Charter
and for an alleged breach of the duty of fairness.
I.
Background
[2]
At
some point the Minister became aware that during World War II Mr. Odynsky
had worked as a guard in the Poniatowa forced labour camp in the Ukraine under the
direction of the German S.S. In that camp in November 1943, thousands of
Jewish prisoners were massacred by killing squads commanded by the S.S. The
Minister was concerned that Mr. Odynsky had not disclosed this history
when he sought entry to Canada as a landed immigrant in 1949.
[3]
On
September 24, 1997 the Minister indicated an intention to seek the revocation
of Mr. Odynsky’s Canadian citizenship by giving notice to him in
accordance with s. 18 of the Act. Mr. Odynsky then exercised his right
under s. 18 for a referral of his case to the Federal Court. That reference
was perfected by the Minister on December 11, 1997.
[4]
The
Federal Court reference was heard by Justice Andrew MacKay in late 1998 and
continued into August of 1999 (see: Canada (Minister of Citizenship and
Immigration) v. Odynsky, 2001 FCT 138, 196 F.T.R. 1). Justice MacKay heard
evidence from witnesses in the Ukraine and in Toronto and found,
on a balance of probabilities, that Mr. Odynsky had obtained a visa for
entry to Canada by lying to
Canadian authorities when asked about his wartime experiences. On the strength
of this conclusion Justice MacKay made a declaration pursuant to s. 18 of the
Act that Mr. Odynsky obtained his Canadian citizenship by false
representation or by knowingly concealing material circumstances. His decision
included these additional findings:
225. In considering any report to the
Governor General in Council concerning Mr. Odynsky pursuant to s-s. 10(1)
of the Act, the Minister may wish to consider that
1) on the evidence
before me I find that Mr. Odynsky
did not voluntarily join the SS auxiliary forces, or voluntarily serve with them
at Trawniki or Poniatawa, or later with the Battalion Streibel;
2) there was no
evidence of any incident in which he was involved that could be considered as
directed wrongfully at any other individual, whether a forced
labourer-prisoner, or any other person;
3) no evidence was presented
of any wrongdoing by Mr. Odynsky
since he came to Canada, now more than 50 years ago;
4) evidence as to his
character from some of those who have known him in Canada, uncontested at trial, commended his
good character and reflected his standing within his church and within the
Ukrainian community in Toronto.
226. While those factors may be
relevant to any discretion the Minister or the Governor in Council may
exercise, they are not relevant in this proceeding.
[5]
Before
submitting a report under s. 10 of the Act to the GIC, the Minister invited
further submissions from Mr. Odynsky. He responded with extensive
material attesting to his good character and setting out a number of other
mitigating factors.
[6]
Notwithstanding
Mr. Odynsky’s entreaties, the Minister proceeded with a report to the GIC recommending
that his citizenship be revoked. The basis for that recommendation was as follows:
Before deciding to recommend revocation,
I have also balanced the personal interests of Mr. Odynsky against the public
interest. In doing so, I have considered the personal interest issues raised
on Mr. Odynsky’s behalf by his counsel and his family in appendices C, D,
F, H and J attached to this report, and in letters of support from other
Canadian individuals and organizations, including the letters which form part
of those appendices. I have concluded, for the following reasons, that the
public interest in holding him accountable for the seriousness of his deceit
regarding his wartime activities outweighs Mr. Odynsky’s personal
interests:
1. Mr. Odynsky’s citizenship
was obtained through deceit. The length of time he has been in Canada should not be conclusive in
deciding whether that citizenship should be revoked, at least in a situation
such as the instant case where the deceit foreclosed inquiries relating to
reprehensible acts committed in wartime. Otherwise, the effect would be to
allow Mr. Odynsky to benefit now from his deception on entry about such
grave matters.
2. Notwithstanding the
evidence regarding Mr. Odynsky’s good character since he came to Canada,
the fact remains that Mr. Odynsky would not have enjoyed any life in
Canada as a Canadian citizen if he had told the truth when he applied to come
to this country.
3. Mr. Odynsky’s
personal interest in staying in Canada does not outweigh the public interest in
ensuring Canada will not be a safe haven for
persons complicit in wartime crimes or atrocities and in ensuring the integrity
of the Canadian citizenship process. Moreover, it is inappropriate to put a
great deal of emphasis on Mr. Odynsky’s personal interest in maintaining
citizenship in order to maintain family ties. Revocation of citizenship does
not automatically lead to deportation. Removal proceedings do not ensue unless
I choose to refer an inadmissibility report by an immigration officer to the
Immigration Division of the Immigration and Refugee Board for an admissibility
hearing.
4. The considerations
of state sponsored health care and protection of the elderly do not outweigh
the serious misrepresentation made by Mr. Odynsky. As a result of his
deceit in entering Canada, Mr. Odynsky gained the
status that entitled him to enjoy 50 years of state sponsored health care. His
interest in maintaining the benefits of that status are outweighed by the
public interest described above.
5. Mr. Odynsky’s
personal interest in remaining in Canada
does not outweigh the public interest in ensuring:
a. that Canada will
not be a safe haven for persons who have committed or been complicit in war
crimes, crimes against humanity or other reprehensible acts regardless of when
or where they were committed; and
b. the integrity of
the Canadian citizenship process.
Furthermore, I have concluded that
Mr. Odynsky’s case is still placed within the policy of Canada’s War Crimes Program
regarding World War II cases although it was concluded by Mr. Justice MacKay
that Mr. Odynsky’s service with the Germans was not voluntary. As
indicated by Justice Counsel in her submissions of November 22, 2001: “(…)
membership alone was not the basis for commencement of proceedings, Mr. Odynsky
served as a paid, armed guard at a Forced Labour Camp primarily
populated by Jewish prisoners, both before and after those prisoners were
massacred as part of the ‘Final Solution’”. The nature of Mr. Odynsky’s
service, whether voluntary or not, had no bearing on his admissibility to Canada in 1949. The fact that his
service was found to be involuntary does not change the fact that he did not
reveal anything about that service when he applied to come to Canada.
[7]
After
considering the Minister’s Report the GIC issued an Order in Council stating:
Her Excellency the Governor General in
Council, having considered the report of the Minister of Citizenship and
Immigration made under section 10 of the Citizenship Act in relation to
the person named in the annexed schedule, hereby declines to exercise the power
conferred by section 10 of the Citizenship Act with respect to that
person.
It is from this decision that B’nai Brith
seeks declaratory and other prerogative relief.
II. Issues
[8]
(a) Does
the Applicant have standing and, if so, did the GIC err in the exercise of its
authority under s. 10 of the Act by taking into account matters other than
whether Mr. Odynsky had obtained his Canadian citizenship on the basis of
a material misrepresentation or omission?
(b) Did the GIC owe a
duty of fairness to B’nai Brith?
(c) Was the GIC’s
decision reasonable?
(d) Does s. 7 of the
Charter apply?
III. Analysis
Standing
[9]
There
is no basis for B’nai Brith’s contention that it has a “direct interest” or is
“directly affected” by the GIC’s decision concerning Mr. Odynsky. This
issue was conclusively determined by Justice Eleanor Dawson in the earlier
appeal from the Prothonotary’s summary dismissal order in this proceeding (see:
League for Human Rights of B’nai Brith Canada v. Canada, 2008 FC 732,
[2008] F.C.J. No. 926). It cannot be reargued now.
[10]
Justice
Dawson left open the question of whether B'nai Brith should be granted public
interest standing but her decision, nevertheless, contains a thorough and very
helpful analysis of the relevant evidence and authorities on that issue.
[11]
There
is no disagreement among the parties that an applicant for public interest
standing must satisfy a conjunctive three-part test. It is required that:
i.
There
is a serious question raised;
ii.
The
applicant has a genuine or direct interest in the outcome of the litigation;
and
iii.
There
is no other reasonable or effective way to bring the issue before the Court.
See Canada v. Borowski, [1981] 2. S.C.R. 575, Sierra
Club of Canada v. Canada (Minister of
Finance),
[1999] 2 F.C. 211 (T.D.), and Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236.
[12]
There
is no question that B’nai Brith has raised a serious issue of statutory
construction in this proceeding and the Attorney General did not strenuously
argue otherwise. Justice Dawson also felt this was a serious issue worthy of
further consideration, and I can find no basis for taking issue with her
finding.
[13]
The
question of whether B’nai Brith has a genuine or direct interest in the GIC’s
decision is somewhat more vexing. Because of its longstanding involvement in
the advancement of human rights and in war crimes issues, B’nai Brith claims to
have sufficient expertise and interest to challenge what it contends was an
unlawful interpretation of s. 10 of the Act.
[14]
Having
reviewed the authorities including Sierra Club, above, Canadian
Council of Churches, above, and Harris v. Canada (2000), 256 N.R.
221 (F.C.A.) and considering the affidavit of Alan Yusim, Director,
MidWest Region for B’nai Brith, I am satisfied that B’nai Brith has met the
genuine interest requirement necessary for public interest standing in this
case. Indeed, I cannot think of any other outside party which would have a
greater interest in the outcome of a case like this one than B’nai Brith.
[15]
Ordinarily
it is the third requirement for public interest standing that will be a
stumbling block for a party like B’nai Brith (see Sierra Club, above,
and Canadian Council of Churches, above). That is so because in most
cases involving a dispute between the Crown and a private-interest litigant,
one party will be aggrieved by the outcome and will almost always be better
placed than a public-interest party to challenge it. That is not the case
here. The history of the few reported cases involving citizenship revocation
indicates that both the Crown and the affected person have consistently
maintained that the GIC has a broad discretion under s. 10 of the Act. In cases
like Oberlander v. Canada (Attorney General), 2003 FC 944,
[2003] F.C.J. No. 1201 (Oberlander (2003)) where the person affected
seeks judicial review of a negative decision by the GIC, the option of
intervening will not be attractive for the reasons already expressed by Justice
Dawson in the earlier proceeding in this case:
64
However, there is jurisprudence to the effect that an intervener takes the
pleadings and the record as it finds them, and that an intervener may not
litigate new issues. See, for example, Maurice v. Canada (Minister of Indian Affairs and Northern
Development) (2000), 183
F.T.R. 45 (T.D.). In the Oberlander case, both the Attorney General and
Mr. Oberlander proceeded on the basis that the Governor in Council could engage
in a balancing of the individual’s personal interests. A similar position has
been adopted by the Attorney General in this case.
[16]
In a
case like this one where citizenship is not revoked, the GIC’s decision will
never be judicially reviewed except where a third party seeks to do so.
[17]
I do
not accept the argument advanced by Mr. Odynsky’s counsel that a party
like B’nai Brith can never be permitted to directly challenge the outcome of an
administrative process between private litigants. The suggested option of bringing
a wholly independent application for declaratory relief ignores the problem that
such a proceeding would have to be advanced hypothetically without an
evidentiary record or a reviewable decision. To my thinking this proceeding
represents the only realistic means for B’nai Brith to seek a declaration with
respect to the point of statutory interpretation it asserts.
Standard of Review
[18]
Before
addressing the statutory interpretation issue raised on this application it is
necessary to identify the appropriate standard of review. This was an issue
thoroughly canvassed by the Court of Appeal in Oberlander v. Canada
(Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3 (Oberlander
(C.A.)) and later by Justice Michael Phelan in Oberlander v. Canada (Attorney
General), 2008 FC 1200, [2008] F.C.J. No. 1439 (Oberlander (2008)) and
I need not repeat that analysis here. It is sufficient for present purposes to
conclude that the scope of s. 10 of the Act is a matter of law to be resolved
on the standard of correctness. With respect to the review of the GIC decision
on the merits and subject, of course, to the modifications established more
recently in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, I would adopt the following statement of Justice Robert Décary in Oberlander
(C.A.) at paras. 55
and 56:
55 The case at bar resembles Suresh
to the extent that the Governor in Council is dealing with a self-imposed
government policy, but it cannot be said here that there is a negligible legal
dimension in determining whether a person falls within the ambit of the war
criminals policy. A Canadian citizen ought not, in my view, be declared
stateless and be stigmatised as a suspected war criminal by a decision which
would be reviewed on a standard affording greater deference than on the
standard of reasonableness simpliciter.
Application of the standard of review
56 I agree with the reviewing Judge
that there was no obligation on the Governor in Council to mention all the
elements it considered before reaching its decision and that the fact that
peripheral elements are not mentioned is no proof that they were not considered
or that they were arbitrarily discarded. I also agree that a reviewing court
should not enter into a re-weighing of the evidence and the factors submitted
by the parties.
Previous
Authorities
[19]
Counsel
for the Attorney General argued before me that the scope of the GIC’s
discretion under s. 10 was settled by the Court of Appeal decision in Oberlander
(C.A.), above, and
by other authorities which have at least implicitly recognized a broad
discretion at that stage of the citizenship revocation process. There is no
question that the Attorney General took the position in the proceedings
involving Mr. Oberlander that the GIC’s authority included a delicate balancing
of policy, personal interests and the public interest, but I do not agree that
the Court unreservedly accepted that position. Rather, the Court found it
unnecessary to resolve the point and simply assumed that the Attorney General’s
position was well-founded (see Oberlander (C.A.) at para. 42).
On this point, I am in complete agreement with the views of my colleague
Justice Dawson who, in dealing with the interlocutory appeal in this proceeding,
interpreted the decision in Oberlander (C.A.) as follows:
42 I read this to be a clear
reservation that the Court of Appeal accepted, for the purpose of the appeal,
the Attorney General’s acknowledgment of the need to balance interests, but
that such acceptance was not intended to foreclose future argument on the
issue.
43 In the circumstance where the
Court of Appeal’s decision was expressly stated to be based upon the Minister’s
acknowledgment, I do not find that the applicant’s argument is bereft of any
possibility of success because of the Oberlander decision.
44 This view is consistent with the
observation of Justice Pratte in Canada (Minister of Employment and Immigration) v. Taggar, [1989] 3 F.C. 576 (C.A.), at
page 582, that the authority of a prior decision "is very limited since,
rightly or wrongly, it was partly based on the concession made by counsel for
the Minister."
[20]
Other
relevant authorities have only lightly touched on the issue of the scope of the
GIC’s authority under s. 10. This is not entirely surprising because both the
Minister’s and the GIC’s past working assumption seems to have been based on
the existence of a broad statutory discretion. At the same time it would not
have been of any interest to the person affected to argue for a more limited
authority based solely on the determination of the question of material
misrepresentation. That was the situation in the underlying reference hearing
in this case, where Justice MacKay found that Mr. Odynsky had obtained his
citizenship on the strength of false representations or by knowing concealment
of material circumstances about his wartime activities (see para. 221).
Nevertheless, Justice MacKay went on to make a number of additional findings
concerning the degree of Mr. Odynsky’s complicity and his good character.
These matters, he said, were not relevant to the issue he had to decide but
“may be relevant to any discretion the Minister or the Governor in Council may
exercise”.
[21]
In
Oberlander (2003) Justice Luc Martineau held that the GIC’s
authority under s. 10 was to be exercised independently from the Federal Court
reference finding. He also identified no legal error arising from the GIC’s
consideration of the Government’s “no safe haven” policy. Those findings,
though, were made in the context of argument from both parties that the GIC had
a broad discretion under s. 10.
[22]
When
the Oberlander case was recently redetermined, Justice Michael Phelan came to
the same conclusion but, again, in the context of common ground between the
parties as to the scope of the GIC’s s. 10 authority: see Oberlander (2008),
above.
[23]
In
an earlier decision of this Court in Canada (Minister of
Citizenship and Immigration) v. Bogutin (1997), 42 Imm. L.R.
(2d) 248, [1998] F.C.J. No. 211, Justice William McKeown observed that
under ss. 10(1)(a) of the Act there is an automatic cessation of citizenship
where the GIC is satisfied that citizenship was obtained by material
misrepresentation. To the same effect is the decision by Justice Donna
McGillis in Canada (Minister of Citizenship and Immigration)
v. Copeland, [1998] 2 F.C. 493, 140 F.T.R. 183. Notwithstanding those
comments, in both decisions there is a recognition that the Federal Court
reference decision is merely one step in a process which may or may not result
in the revocation of citizenship. Neither of those decisions undertook a
detailed analysis of the scope of the GIC’s mandate. Indeed, the passages
relied upon appear to me to be first-impression and inconclusive obiter.
[24]
My
review of the relevant authorities indicates that the issue before me has not
been previously analyzed in the context of thorough or competing argument and,
in the result, there has yet to be a considered decision on point. It is
therefore necessary to consider the scope of the GIC’s authority under s. 10 of
the Act.
The Scope of
the GIC’s Authority Under S. 10 of the Act
[25]
The
process for revoking Canadian citizenship under the Act is clear enough. Under
s. 18, where the Minister has formed a preliminary view that a person may have
obtained Canadian citizenship by false representation, fraud or knowing
concealment of material circumstances, the Minister cannot pursue revocation
without first giving notice of an intention to do so. The affected person is
then entitled to request that the Minister refer the case for adjudication in
the Federal Court. Where the Federal Court determines that Canadian
citizenship was obtained by false representation, fraud or knowing concealment
of material circumstances, it will issue a declaration to that effect. The
Minister may then submit a report to the GIC recommending an order for revocation
of citizenship. Upon the GIC being “satisfied” that the person obtained
citizenship by false representation, fraud or knowing concealment of material
circumstances, the person ceases to be a citizen “as of such date as may be
fixed by order of the Governor in Council”.
[26]
The
determination of whether Canadian citizenship was obtained through a material
and wilful misrepresentation or omission is a threshold issue that is carried
forward through the revocation process. The Minister cannot consider a
revocation without forming a preliminary view on the point. Upon the request
of the person affected, the Federal Court must resolve that issue on a balance
of probabilities and, where so determined, issue a declaration.
[27]
On
a report from the Minister the GIC must then be “satisfied” that citizenship
was fraudulently obtained before it can make the final order for revocation.
[28]
There
is a practical necessity for resolving the material misrepresentation question
in a judicial hearing. This is a question of fundamental importance to the
rights of the affected person requiring a careful assessment of considerable
evidence such that a process of independent adjudication is essential to its
proper determination.
It is not a matter that either the Minister or the GIC is appropriately placed
to resolve. Accordingly there is a clear purpose served by segregating that part
of the process from what follows under s. 10.
[29]
The
question that remains, though, is whether the express mention of a material
misrepresentation in s. 10 was intended to remove all other matters from
consideration in the exercise of the GIC’s discretion, or whether it was
intended only to identify or highlight that issue as an essential precondition to
the GIC’s revocation order.
[30]
The
principle of statutory interpretation that underlies B’nai Brith’s argument is
that Parliament’s expression of the single consideration of material
misrepresentation by the GIC necessarily excludes all other considerations from
the exercise of its s. 10 discretion. This, it argues, reflects the principle
of implied exclusion: that the legislative expression of one thing excludes
another. This principle and its limitations
were discussed at length by the Federal Court of Appeal in Normandin v.
Canada (Attorney General), 2005 FCA 345, [2005] F.C.J. No. 1768 at paras.
26-28 and 31-32:
26 The appellant’s argument in
relation to the implied exclusion rule is attractive, but it gives this rule of
construction an absolutism that the cases and authorities quite uniformly do
not grant it.
27 First, this rule of statutory
interpretation, also known as the "a contrario argument" (see
Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed.
(Scarborough: Carswell, 2000), at p. 336), operates in the following way,
according to Professor Sullivan in Sullivan and Driedger on the Construction of
Statutes, 4th ed. (Toronto: Butterworths, 2002), at pages 186-87:
An implied exclusion argument lies
whenever there is reason to believe that if the legislature had meant to
include a particular thing within its legislation, it would have referred to
that thing expressly. Because of this expectation, the legislature’s failure to
mention the thing becomes grounds for inferring that it was deliberately
excluded. Although there is no express exclusion, exclusion is implied. The
force of the implication depends on the strength and legitimacy of the
expectation of express reference. The better the reason for anticipating
express reference to a thing, the more telling the silence of the legislature.
28 But important and useful as it may
be, this rule of construction is very far from being a general rule of
application or interpretation: see Congrégation des Frères de l’Instruction
chrétienne v. School Commissioners for the Municipality of Grand’Pré,
[1977] 1 S.C.R. 429, at page 435; Murray Bay Motor Co. v. Belair Insurance
Company, [1975] 1 S.C.R. 68, at page 74. In fact, in Alimport v.
Victoria Transport, [1977] 2 S.C.R. 858, at page 862, Mr. Justice Pigeon,
discussing the rule and speaking for the Court, writes:
The principle that the mention of a
particular case excludes application of other cases not mentioned is far from being
recognized as a general rule of interpretation. On the contrary, an affirmative
provision of limited scope does not
ordinarily exclude the application of a general rule otherwise established.
[…]
31 Second, this rule of statutory
interpretation relied on by the appellant must be used with the utmost caution:
see P.-A. Côté, The Interpretation of Legislation, supra, at page 337.
Lacking absolute intrinsic value, the rule must be set aside when other
statutory provisions relevant to the issue under review suggest that its
consequences would go against the statute’s purpose (see P.-A. Côté in his
work, supra, at page 339, Ternette v. Solicitor General of Canada,
[1984] 2 F.C. 486 (T.D.), are manifestly absurd (Congrégation des Frères de
l’Instruction chrétienne, supra, at page 436) or lead to incoherence and
injustice (Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of
Police, [1979] 1 S.C.R. 311, at pages 321-22).
32 In short, the expressio unius est
exclusio alterius rule cannot be used to thwart the intention of Parliament and
make it inoperative. "Like all arguments based on these
presumptions", writes Professor Sullivan, at page 193 of her work, supra,
referring to the rule, "its weight depends on a range of contextual factors
and the weight of competing considerations. Even if an implied exclusion
argument is not rebutted, it may be outweighed by other indicators of
legislative intent."
[31]
In
my view, the isolation of the material misrepresentation issue in s. 10 was not
intended to remove from the GIC the discretion to consider other factors before
issuing an order for revocation of citizenship. It is true that a material
misrepresentation is the only prerequisite to a revocation decision and that
such a finding underpins the entire process of revocation. But it does not
necessarily follow that all other factors are thereby excluded from
consideration either by the Minister or by the GIC. The reason why the implied
exclusion does not apply in this situation is explained in the following
passage from Professor Ruth Sullivan, Sullivan on the Construction of
Statutes, 5th ed. (Markham: LexisNexis Canada
Inc., 2008) at p. 250:
There are several ways to rebut an
implied exclusion argument. One is to offer an alternative explanation of why
the legislature expressly mentioned some things and was silent with respect to
others. The legislature may have wished, for example, to emphasize the
importance of the matters mentioned or, out of excessive caution (ex
abundanti cautela), to ensure that the mentioned matters were not
overlooked. Express reference to something may be necessary or appropriate in
one context but unnecessary or inappropriate in another.
[Footnotes omitted]
Also see Martineau v. Matsqui Institution,
[1978] 1 S.C.R. 118 at p. 130 and Alberta v. Canada (Transport
Commission), [1978] 1 S.C.R. 61 at p. 68.
[32]
Here
the legislative context supports the Respondents’ position that the GIC’s authority
under s. 10 is more than a mere formality and that it enjoys a broad discretion
to consider matters beyond the issue of material misrepresentation.
[33]
The
usual way to confer a legislative discretion upon a decision-maker is to couple
the authority to decide a matter with the word "may". Section 10
does not use that convention in a direct way but, instead, creates an automatic
revocation of citizenship to take effect as of such date as may be fixed by
order of the GIC. While this is an atypical approach to the conferral of a
discretion, this language seems to me to suggest an enlargement to the scope of
the GIC’s discretion beyond consideration of the single issue of material
misrepresentation. If it was otherwise intended, Parliament could easily have
used the mandatory words "as of such date as shall be fixed by
order of the GIC", thereby excluding the possibility that the GIC might
choose not to fix any date for the revocation of a person’s citizenship based
on its own consideration of relevant factors. Within the complete context of
s. 10, Parliament’s permissive language is indicative of an intent to confer a
broad discretion upon the GIC in the exercise of its revocation authority.
[34]
Moreover,
while the Court of Appeal decision in Oberlander (C.A.) does not
conclusively resolve the scope of the GIC’s discretion under s. 10, it does
offer some insight into other aspects of the decision-making process which helps
to understand the GIC’s mandate. Of particular significance is the observation
at para. 40 of the decision that the Minister’s Report to the GIC is not a
means by which the Federal Court finding of material misrepresentation can be
challenged. That misrepresentation finding is said to be final, non-reviewable
and binding as an "indisputable fact" upon the GIC. This is, of
course, consistent with the clear stipulation in ss. 18(1)(b) of the Act
that the Federal Court "decides" whether or not there has been a
material misrepresentation. Then, at para. 36 of the Oberlander (C.A.) decision,
the Court characterized the role of the Minister in preparing a Report as follows:
36 Section 10 of the Citizenship Act
requires the Minister to prepare "a report". In the absence of any
mandatory formula which the Minister should adopt, a wide latitude should be
given to her. The prosecutor’s brief in Suresh -- the content of which
is not described in the reasons for judgment -- should not be taken out of its
statutory and factual context, even more so since the principal reason why it
was not accepted was that it was not articulate nor rational. The reviewing
Judge was correct in finding that the Report of the Minister was part of the
reasons of the Governor in Council.
[Emphasis added]
[35]
It
is difficult to think of a purpose that would be served by a ministerial report
to the GIC if the only relevant fact that the GIC can consider has already been
indisputably decided on a reference to the Federal Court. I would add to this
that in its earlier decision in Canada (Secretary of State) v. Luitjens,
[1992] F.C.J. No. 319, 142 N.R. 173 (F.C.A.) the Federal Court of Appeal
described the Federal Court finding of material misrepresentation as
"merely one stage of a proceeding which may or may not result in a final
revocation of citizenship". This statement is difficult to reconcile with
the proposition that the sole determinative issue for revoking citizenship is one
already conclusively determined by the Federal Court. B’nai Brith attempted to
answer this point by saying that the Minister has a plenary discretion to
decide whether to refer a case for revocation to the GIC notwithstanding a
finding of material misrepresentation by the Federal Court. Presumably this
broader discretion would permit the Minister to consider the personal
circumstances of the affected person along with relevant government policies
dealing with revocation of citizenship in like situations. However, as noted
above, the Federal Court of Appeal in Oberlander (C.A.) observed
that while there is no legislative expression to support a broad ministerial
discretion, the Minister was said to have a "wide latitude" in
reporting to the GIC. It appears doubtful to me that Parliament intended that
only the Minister should have a plenary discretion to refer a matter to the GIC
but that the GIC has no discretion to look behind the Minister’s decision. The
idea that the GIC is fulfilling merely a symbolic role in this process and is
bound to accept the Minister’s recommendation to revoke citizenship is not a
proposition that appeals to me and it is not consistent with the Court’s view
of the significance of the Minister’s reporting function as described in Oberlander
(C.A.).
[36]
While
the Minister may well enjoy a discretion not to proceed at all with the process
of revocation, once that process is initiated there is no basis in the language
of s. 10 to support the argument that the scope of the Minister’s discretion is
any broader than that of the GIC. Once the Federal Court has found that
citizenship has been conferred on the basis of a misrepresentation, the Act
makes no distinction between the Minister’s authority and that of the GIC. The
GIC’s authority to make an order is directly tied to a “a report from the
Minister”. If the Minister is entitled to report broadly to the GIC it is
implicit that the GIC has a corresponding discretion to take into account any relevant
factors before issuing a revocation order.
[37]
B’nai
Brith countered by arguing that the reason the GIC is tasked with being
“satisfied” that citizenship has been fraudulently obtained is to account for
situations where the person affected does not request a Federal Court
reference. There the GIC must make its own misrepresentation finding. While
this argument has some superficial appeal, I think it likely that if Parliament
had such a specific intent it would have stated that case explicitly. Instead,
Parliament adopted language in s. 10 which does not distinguish between the two
situations. This failure to make a distinction where one would otherwise be
expected implies that the GIC’s discretion was not intended to be limited but,
rather, was considered plenary.
[38]
Ultimately
on this issue I am of the view that the requirement for a finding of material
misrepresentation in s. 10 of the Act was not intended by Parliament to remove
other matters from consideration in the exercise of the GIC’s discretion. Instead,
that issue was highlighted to ensure that citizenship could not be revoked
except where that prerequisite had been established.
[39]
As
one final point on the interpretation of s. 10, I must comment on the
Respondents’ reliance upon the use of the word “peut” that appears in the
French text of the Act. This language, they say, further indicates that a
broad discretion is conferred upon the GIC. I do not, however, believe that I
can rely upon that reference in the French text.
[40]
The
word “peut” was first introduced into the French version of the Act in the 1985
statutory revisions. By virtue of s. 4 of the Revised Statutes of Canada, 1985 Act, R.S.C. 1985,
c. 40 (3rd Supp.) any such change does not operate as new law but is to be
construed as a consolidation of the law as it was previously enacted. It is
noteworthy that the English text was not changed through the 1985 statutory
revision thereby creating a variance between the French and English that did
not previously exist. This same problem was of concern to the Court of Appeal
in Beothuk Data Systems Ltd. v. Dean, [1998] 1 F.C. 433, [1997] F.C.J.
No. 1117, where a substantive change to the French version of the Canada
Labour Code in the 1985 statutory revision was held to have been made
without authority and could not inform the search for Parliament’s original
intent (see paras. 43-44). It would only be in a situation where the same
change was effected in both languages that one could infer that the revision
was made for clarification and to bring the text into closer conformity with
the original Parliamentary intent.
Duty of
Fairness
[41]
B’nai
Brith argues that the GIC owed it a duty of fairness, at least to the extent of
providing reasons for its decision. This duty, it says, would arise at the
point in time that B’nai Brith’s interests as a public-interest litigant were
known or could be ascertained.
[42]
This
argument is without merit. There is no recognized duty of fairness owed to the
public at large. To the extent that fairness may require a decision-maker to
provide reasons it is an obligation owed only to the parties directly affected
and no further. This has been made clear in decisions like Newfoundland
Telephone Co. v. Newfoundland (Board of Commissioner
of Public Utilities), [1992] 1 S.C.R. 623 at para. 21 where the
administrative decision-maker’s duty of fairness was expressly limited “to the
regulated parties whose interest they must determine”.
[43]
It
is also clear in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 that the scope of the duty of fairness,
including the obligation to give reasons for a decision, will vary according to
the importance or impact of the decision to the lives of those affected by it.
At the centre of the fairness analysis was said to be a consideration of
whether “those whose interests were affected had a meaningful opportunity to
present their case fully and fairly”. In light of these principles, it cannot
be said that a decision-maker owes any duty of fairness to a third-party which
claims to represent the public interest but which is not directly involved in
the decision-making process at first instance.
Reasonableness
[44]
B’nai
Brith broadly asserted in its written argument that the GIC decision not to
revoke Mr. Odynsky’s citizenship is indefensible and not within the range
of reasonable and acceptable outcomes. The record discloses, however, that the
GIC had before it a considerable body of mitigating evidence supporting
leniency, including Justice MacKay’s findings that Mr. Odynsky was not a
volunteer and had not been shown to have acted wrongfully towards any other
person in the camps where he served. In addition, Justice MacKay noted Mr.
Odynsky favourable record since arriving in Canada in 1949. It
was reasonably open to the GIC on this record to have rejected the Minister’s
recommendation for revocation of citizenship and B’nai Brith has not made a
convincing case to the contrary.
The
Application of the Charter
[45]
Lastly,
B’nai Brith contends that the GIC’s decision not to revoke Mr. Odynsky
citizenship constitutes a breach of s. 7 of the Charter and renders Canada complicit as
an accessory after the fact to war crimes and crimes against humanity. This
submission was not further advanced in oral argument and it is devoid of
merit. I need only say that B’nai Brith has not explained how its corporate
interests could be engaged under s. 7 and its argument is otherwise
hypothetical on this record.
IV. Conclusion
[46]
On
the basis of the foregoing, I am satisfied that the Governor in Council’s discretion
under s. 10 of the Citizenship Act extends beyond a consideration of the
existence of a material misrepresentation and may include other factors such as
the personal circumstances of the affected person. In the result, I am satisfied
that the decision under review was made in conformity with the authority
conferred upon the GIC by s. 10 of the Act. In addition, the GIC owes no duty
of fairness to third parties in the exercise of its s. 10 authority and has no
obligation to provide reasons to anyone other than the person affected. There
is also no basis for concluding that the GIC’s decision was unreasonable or was
made in breach of the Charter.
Costs
[47]
Neither
B’nai Brith nor the Crown sought costs against the other and, as between them,
no costs are awarded. Mr. Odynsky is entitled to his costs payable by B’nai
Brith under Column III.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed with costs
payable to Mr. Odynsky by B’nai Brith under Column III.
“ R. L. Barnes ”
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