Date: 20080612
Docket: T-1162-07
Citation: 2008 FC 732
BETWEEN:
LEAGUE
FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
Applicant
and
HER MAJESTY THE QUEEN
THE ATTORNEY GENERAL OF CANADA
WASYL ODYNSKY
Respondents
REASONS FOR
ORDER
DAWSON J.
[1]
By
order dated February 4, 2008, the case management prothonotary struck out this
judicial review application. The prothonotary found that it is plain and
obvious that the application cannot succeed because the applicant lacks
standing. The prothonotary found that the applicant is neither directly
affected by the decision at issue, nor does it have public interest standing
because it has not raised a serious issue of law.
[2]
On this appeal from the prothonotary's order, I exercise my discretion de
novo. I allow the appeal because I conclude that, in this case, the issue
of public interest standing should not be decided on a preliminary or
interlocutory basis. Instead, the issue should be left for the judge who hears
the application for judicial review.
Facts
[3]
In 1997, the Minister of Citizenship and Immigration (Minister) gave
notice to Wasyl Odynsky that she intended to request that the Governor in
Council revoke his citizenship. Mr. Odynsky requested that the matter be
referred to this Court pursuant to subsection 18(1) of the Citizenship Act,
R.S.C. 1985, c. C-29 (Act). Previously, the Minister had served a similar
notice on Vladimir Katriuk, and he too had requested that the matter be
referred to this Court. In accordance with those requests, each matter was
referred to this Court for determination as to whether each individual had
obtained their citizenship by false representations or fraud, or by knowingly
concealing material circumstances.
[4]
In reasons reported as Canada (Minister of Citizenship and
Immigration) v. Katriuk, [1999] F.C.J No. 90 (QL), Justice Nadon found that
Mr. Katriuk was admitted to Canada for permanent residence and obtained
citizenship by false representation or by knowingly concealing material
circumstances. In reasons reported as Canada (Minister of Citizenship
and Immigration) v. Odynsky, [2001] F.C.J. No. 286 (QL), Justice MacKay
reached a similar conclusion in respect of Mr. Odynsky.
[5]
Following receipt of the Court's decisions, the Minister prepared
reports recommending to the Governor in Council that Mr. Odynsky's and Mr.
Katriuk's citizenship be revoked. Counsel for Mr. Odynsky and Mr. Katriuk were each
given the opportunity to make written submissions on whether their client’s citizenship
should be revoked. The Minister's reports, together with the submissions and
materials provided by Mr. Odynsky and Mr. Katriuk, were then placed before the
Governor in Council.
[6]
On May 17, 2007, the Governor in Council issued separate
orders-in-council not revoking the citizenship of Mr. Odynsky or Mr. Katriuk.
That day, separate orders-in-council also issued which revoked the citizenship
of Helmut Oberlander and Jacob Fast.
[7]
On June 22, 2007, the League for Human Rights of B’Nai Brith Canada
(applicant) commenced this application, challenging the decision not to revoke
the citizenship of Mr. Odynsky. The applicant alleged that the Governor in
Council erred in law and that the decision violated the Canadian Charter of
Rights and Freedoms. The applicant brought a similar application in respect
of the decision concerning Mr. Katriuk, being Court File No. T-1191-07.
[8]
After the certified tribunal record had been filed and the applicant had
filed its affidavit evidence, Mr. Odynsky moved for an order striking this
application on the ground that the applicant lacked standing. This motion was
supported by the Attorney General of Canada (Attorney General) and Mr. Katriuk,
who each filed written submissions and made oral argument. The parties agreed
that the decision on the motion brought by Mr. Odynsky would apply equally to the
application concerning Mr. Katriuk. That agreement remains in place and a copy
of these reasons will be placed in Court File No. T-1191-07, together with an
appropriate order.
The Scope of
this Appeal
[9]
On this appeal, the applicant argues that the issue of standing should
not be decided as a preliminary matter but rather as a component of its
application. Mr. Odynsky agrees that, if the Court decides that the
prothonotary erred or decides de novo that the application should not be
struck, the issue of standing should be left to the judge who hears the
judicial review application. Accordingly, I do not decide the merits of the
applicant's claim to public interest standing.
Standard of
Review on Appeals under Rule 51
[10]
Justice Hugessen recently explained how discretionary decisions of
prothonotaries are reviewed on an appeal brought under Rule 51. In Jazz Air
LP v. Toronto Port Authority, [2007] F.C.J. No. 841 (QL),
aff’d [2007] F.C.J. No. 1240 (C.A.) (QL), he wrote at paragraphs 38 and 39:
The case law on the standard of
review to be applied by a judge of this Court when reviewing a discretionary
decision of a prothonotary establishes a clear distinction between decisions
which are "discretionary" and those which are not.
A discretionary decision is one
respecting a question on which by definition two equally reasonable people may,
without error on the part of either one, reach diametrically opposed
conclusions. Error, whether of fact or of law will always, of course, open a
decision to appellate review. But even where there is no error a discretionary
decision may still, in some circumstances invite the reviewing Court to make a
fresh and different exercise of its own discretion.
[11]
On appeal, the Federal Court of Appeal rejected the argument that
Justice Hugessen had erred by interfering with the prothonotary’s order in
circumstances where he had found no error of law or fact on the part of the
prothonotary.
[12]
The Federal Court of Appeal also confirmed, at paragraph 11 of its
reasons, that judges of this Court remain bound to apply the test as stated by
Justice MacGuigan for the majority in Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425 (C.A.). Justice Sharlow, writing for the Court of Appeal in Jazz
Air, cited above, stated at paragraph 13 that:
The test was recently restated by
Justice Décary, on this point writing for the Court in Merck & Co. v.
Apotex Inc., [2003] F.C.J. No. 1925, 2003 FCA 488, at paragraph 19. The restated test
reads as follows:
Discretionary orders of prothonotaries ought not be disturbed
on appeal to a judge unless:
a) the questions raised
in the motion are vital to the final issue of the case, or
b) the orders are
clearly wrong, in the sense that the exercise of discretion by the prothonotary
was based upon a wrong principle or upon a misapprehension of the facts.
The restatement simply reverses the two branches of the
test so that they are considered in a more logical order. Once it is determined
that a de novo review is required, it is not necessary to attempt to
identify any error in the decision under appeal.
[13]
In
the present case, the applicant and the Attorney General submit that the
prothonotary's order dismissing the application on the basis of lack of
standing disposes of a question vital to the final issue of the case. Thus,
they submit that the appeal of the prothonotary’s order is by way of a hearing de
novo.
[14]
Mr. Odynsky submits, however, that, while the reasoning of the majority
in the Aqua-Gem decision would support the view that the Court should
exercise its discretion de novo, the reasoning of the minority ought to
be applied. This is said to be appropriate because the issue of standing is
unrelated to any issue of substance raised by the judicial review application.
In the alternative, if the issue of standing is to be considered de novo,
Mr. Odynsky submits that the Court should not disregard the reasoning of the
prothonotary.
[15]
In my view, the submissions of the applicant and the Attorney General
are correct. The issue of standing is one vital to the final issue of the
case. It follows that I should exercise my own discretion de novo. The
answer to Mr. Odynsky's first submission is that the Federal Court of Appeal in
Jazz Air, cited above, was clear that this Court is bound by the
decision of the majority in Aqua-Gem. As to the second submission, I
agree with Justice Hugessen that a discretionary decision may, in some
circumstances, invite the reviewing judge to make a fresh and different
exercise of his or her own discretion. This is one such case.
[16]
For the reasons that follow, I would not have struck out the application
on a preliminary or interlocutory basis.
Principles
Applicable to Motions to Strike Applications
[17]
Before moving to the issue of standing, it is important to remember that
different considerations apply to motions to strike applications than apply to
motions to strike actions. The applicable principles were recently
summarized by Justice Mactavish in Amnesty International Canada
v. Canada (Canadian Forces) (2007), 287 D.L.R. (4th) 35
(F.C.). I respectfully adopt her summary, found at paragraphs 22 through 30 and
at paragraph 33 of her reasons. There, she wrote:
22. Applications for judicial review are intended
to be summary proceedings, and motions to strike Notices of Application add
greatly to the cost and time required to deal with such matters.
23. Moreover, as the Federal Court of Appeal
observed in David Bull Laboratories (Canada) Inc. v.
Pharmacia Inc., [1994] F.C.J. No. 1629, the striking out process is more
feasible in actions than in applications for judicial review. This is because
there are numerous rules governing actions which require precise pleadings as
to the nature of the claim or the defence, and the facts upon which the claim
is based. There are no comparable rules governing Notices of Application for
Judicial Review.
24. As a consequence, the Federal Court of Appeal
has observed that it is far more risky for a court to strike out a Notice of
Application for Judicial Review than a conventional pleading. Moreover,
different economic considerations come into play in relation to applications
for judicial review as opposed to actions. That is, applications for judicial
review do not involve examinations for discovery and a trial - matters which
can be avoided in actions by a decision to strike: David
Bull, at para. 10.
25. In contrast, the full hearing of an
Application for Judicial Review proceeds in much the same way that a motion to
strike the Notice of Application would proceed, namely on the basis of
affidavit evidence and argument before a judge of this Court.
26. As a result, the Federal Court of Appeal
determined that applications for judicial review should not be struck out prior
to a hearing on the merits of the application, unless the application is
"so clearly improper as to be bereft of any possibility of success".
27. The Federal Court of Appeal further teaches
that "Such cases must be very exceptional and cannot include cases ...
where there is simply a debatable issue as to the adequacy of the allegations
in the notice of motion": David Bull, at para.
15.
28. Unless a moving party can meet this very
stringent standard, the "direct and proper way to contest an originating
notice of motion which the respondent thinks to be without merit is to appear
and argue at the hearing of the motion itself." (David
Bull, at para. 10. See also Addison & Leyen Ltd.
v. Canada, [2006] F.C.J. No. 489, 2006 FCA 107, at para. 5, rev'd on
other grounds [2007] S.C.J. No. 33, 2007 SCC 33).
29. The reason why the test is
so strict is that it is ordinarily more efficient for the Court to deal with a
preliminary argument at the hearing of the application for judicial review
itself, rather than as a preliminary motion: see the comments of the Federal
Court of Appeal in Addison & Leyen, at para. 5.
30. By analogy to the process prescribed in the Federal Courts Rules with respect to the striking out of
statements of claim, as a general rule, no evidence may be led on a motion to
strike a Notice of Application. In addition, the facts asserted by the
applicant in the Notice of Application must be presumed to be true: Addison & Leyen Ltd. et al., above, at para. 6.
[…]
33. Finally,
in deciding whether an Application for Judicial Review should be struck as
bereft of any possibility of success, the Notice of Application should be read
as generously as possible, in a manner that accommodates any inadequacies in
the allegations that are merely the result of deficiencies in the drafting of
the document: see Operation Dismantle, at para. 14.
[18]
Considerations of particular relevance are the following:
·
Actions must be pleaded with far more specificity than
applications. It is thus more feasible to strike a statement of claim or defence
than a notice of application.
·
An application will not be struck out unless it is so clearly improper
as to be bereft of any possibility of success. This is so because it is
generally more efficient for the Court to deal with a preliminary argument at
the hearing of the application, rather than on a motion. If a motion to strike
is considered and fails, the interlocutory proceedings are a waste of time,
money, and court resources.
[19]
To
this I would add the admonition of Justice Evans, sitting in this Court,
in Sierra Club of Canada v. Canada (Minister of Finance), [1999] 2 F.C.
211 (T.D.), that only in very clear cases should a court be prepared to dismiss
an application for judicial review on a preliminary motion for lack of
standing. At paragraph 25, Justice Evans cautioned that at a preliminary stage the
Court may not have the benefit of full legal argument and that, to the extent
that the strength of the applicant’s case is relevant to the ground of
discretionary standing, the Court may not be in a position to make a fully
informed decision that would justify a denial of standing. At paragraph 39,
he wrote:
However,
when the question of standing is raised in a preliminary motion, such as is the
case here, a court should not subject the strength of an applicant's claim to a
level of scrutiny that probes more deeply than considering whether, on the materials
before the court, the applicant has a fairly arguable case or, putting it the
other way, has no reasonable cause of action: Energy Probe v. Canada (Attorney
General) (1989), 68 O.R. (2d) 449 (C.A.); Canadian Civil Liberties Assn. v.
Canada (Attorney General), supra. The burden will be on the moving party in a
preliminary motion to demonstrate that the applicant fails to satisfy even this
low threshold test.
The Issue of
Standing
[20]
The
applicant argues that it has a direct interest in this proceeding which
distinguishes it from the public at large. The applicant also alleges that it
should be afforded public interest standing. Accordingly, I frame the issues to
be decided as follows:
(i)
Have the respondents demonstrated that the applicant’s claim to direct
standing is not fairly arguable or is bereft of any possibility of success?
(ii)
Have the respondents demonstrated that the applicant’s claim to public
interest standing is not fairly arguable or is bereft of any possibility of
success?
The Claim to
Direct Standing
[21]
The
applicant submits that it has been recognized as having a “direct interest” in
related proceedings. Particular reliance is placed on the comments of Justice
McLachlin (as she then was) in R. v. Finta, [1993] 1 S.C.R. 1138.
[22]
The applicant also submits that it has four interests which distinguish
it from the public at large. First, it says that, as an organization, it has
been directly involved in bringing war criminals to justice. Second, it says
that the organization has made a number of representations to the Government of
Canada seeking to have Mr. Odynsky’s citizenship revoked. Third, it says that
the organization represents the relatives of several persons who died while Mr.
Odynsky was stationed at the Poniatowa labour camp in Poland. According to the
applicant, these relatives would be willing to be added as parties to this
application. Fourth, it says that the organization was denied an opportunity to
put its submissions before the Governor in Council. In this regard, the
applicant observes that the submissions of another organization were put before
the Governor in Council.
[23]
Section 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, confers
jurisdiction upon the Federal Court to hear applications for judicial review.
Section 18.1 sets out a number of procedural requirements. Specifically,
subsection 18.1(1) provides that the Attorney General or “anyone directly
affected by the matter in respect of which relief is sought” may make an
application for judicial review.
[24]
The jurisprudence establishes that, for a party to be considered to be
"directly affected," the decision at issue must be one which directly
affects the party’s rights, imposes legal obligations on it, or prejudicially
affects it directly. See: Rothmans of Pall Mall Canada Ltd. v. Canada
(Minister of National Revenue), [1976] 2 F.C. 500 (C.A.).
[25]
In Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607,
an appeal from the Federal Court of Appeal, the Supreme Court of Canada quoted
with approval at page 623 the following passage from Australian Conservation
Foundation Inc. v. Commonwealth of Australia (1980), 28 A.L.R. 257,
when considering the existence of direct standing:
A person is not interested within the meaning of
the rule, unless he is likely to gain some advantage, other than the
satisfaction of righting a wrong, upholding a principle or winning a contest,
if his action succeeds or to
suffer some disadvantage, other than a sense of grievance or a debt for costs,
if his action fails. [emphasis added]
[26]
Without doubt, the applicant and the family members it says it
represents deeply care, and are genuinely concerned, about Mr. Odynsky's
citizenship revocation process and his past service as a perimeter guard of the
Seidlung at the Poniatowa labour camp in German-occupied Poland. However, that
interest does not mean that the legal rights of the applicant, or those it
represents, are legally impacted or prejudiced by the decision not to revoke
Mr. Odynsky’s citizenship. Rather, their interest exists in the sense of
seeking to right a perceived wrong arising from, or to uphold a principle in
respect of, the non-revocation of Mr. Odynsky’s citizenship.
[27]
It follows that the respondents have demonstrated that the applicant’s
claim to direct standing is not fairly arguable.
[28]
In so concluding, I have considered the decision of Justice McLachlin in
Finta, cited above. However, in that case, Justice McLachlin was
considering an application by the applicant to intervene in a case that raised
issues about the interpretation of provisions in the Criminal Code
dealing with war crimes and crimes against humanity. Rule 18 of the Rules of
the Supreme Court of Canada required a party seeking intervenor status to
establish "an interest." Justice McLachlin granted intervenor status,
finding that the applicant had "a direct stake in Canada’s fulfilling its
international legal obligations under customary and conventional international
law."
[29]
In my view, the Finta decision is distinguishable from the case
before me because subsection 18.1(1) of the Federal Courts Act was
not engaged. What is capable of establishing an "interest" in order
to intervene before the Supreme Court of Canada is not necessarily co-extensive
with the requirement of being "directly affected" in order to
commence an application for judicial review in this Court.
[30]
The one interest identified by the applicant that, in my view, deserves
specific mention is the fourth one; that is, the claim that the applicant
was denied an opportunity to put its submissions before the Governor in Council.
On its face, this submission appears to have some merit, especially when,
according to the applicant, another organization was provided such an
opportunity. However, this submission does not appear to be supported by the
evidence. The Governor in Council, when exercising its discretion, owed
Mr. Odynsky a duty of fairness. For this reason, Mr. Odynsky was provided an
opportunity to make written submissions, which were included in the report of
the Minister. According to the Attorney General, this opportunity was only extended
to Mr. Odynsky. As part of his written submissions, Mr. Odynsky included
information that he had obtained from an organization. Thus, the circumstances
surrounding the submissions made to the Governor in Council do not give rise to
any concerns as to fairness. Put simply, another organization was not given a
right or privilege that was not extended to the applicant.
[31]
I now turn to the issue of public interest standing, noting that
subsection 18.1(1) of the Federal Courts Act has been held to be broad
enough to encompass applicants who are not directly affected when they meet the
test for public interest standing. See: Canada (Royal Canadian
Mounted Police Public Complaints Commission) v. Canada (Attorney General),
[2006] 1 F.C.R. 53 (C.A.), at paragraph 56.
Public
Interest Standing
[32]
Given my conclusion that this issue should be left for the judge hearing
the application, my reasons will be brief and focus solely on whether the
respondents have established that the applicant's argument that it has public interest
standing is bereft of any possibility of success.
[33]
I begin by noting that it is a matter of judicial discretion, to be
exercised having regard to the particular circumstances of the case, whether
the question of standing should be determined with final effect on a motion to
strike. See: Finlay, cited above, at pages 616-617.
[34]
As to the criteria to be met, the parties agree that an applicant for
public interest standing must satisfy a conjunctive, three-part test. The
applicant must establish:
1.
There is a serious question to be raised.
2.
The applicant has a genuine or direct interest in the outcome of the
litigation.
3.
There is no other reasonable and effective way to bring the issue before
the Court.
(a) A
serious question
[35]
One
of the issues raised by the applicant is the scope of the discretion possessed
by the Governor in Council when deciding whether or not to revoke a person’s citizenship.
The relevant provision in the Act is section 10, which provides:
|
10.(1) Subject to section 18 but notwithstanding any other
section of this Act, where the Governor in Council, on a report from the
Minister, is satisfied that any person has obtained, retained, renounced or
resumed citizenship under this Act by false representation or fraud or by knowingly
concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be
deemed to have had no effect,
as of such date as may be fixed by order of the Governor
in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship
by false representation or fraud or by knowingly concealing material
circumstances if the person was lawfully admitted to Canada for permanent
residence by false representation or fraud or by knowingly concealing
material circumstances and, because of that admission, the person
subsequently obtained citizenship.
|
10.(1) Sous réserve du seul article 18,
le gouverneur en conseil peut, lorsqu’il est convaincu, sur rapport du
ministre, que l’acquisition, la conservation ou la répudiation de la
citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime
de la présente loi par fraude ou au moyen d’une fausse déclaration ou de la
dissimulation intentionnelle de faits essentiels, prendre un décret aux
termes duquel l’intéressé, à compter de la date qui y est fixée :
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié
sa citoyenneté.
(2) Est réputée avoir acquis la
citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de
faits essentiels la personne qui l’a acquise à raison d’une admission légale
au Canada à titre de résident permanent obtenue par l’un de ces trois moyens.
|
[36]
The
applicant argues that “[t]hough the Governor in Council has treated the
revocation of citizenship power as a broad discretionary power allowing
for consideration of anything and everything, the law does not allow for the
exercise of the revocation power in this manner. The only relevant
circumstance for revocation is that the person has obtained citizenship by
false representation or fraud or by knowingly concealing material
circumstances.”
[37]
Mr. Odynsky responds that, in Oberlander v. Canada (Attorney General),
[2005] 1 F.C.R. 3 (C.A.), the Federal Court of Appeal recognized that
the Governor in Council “had a discretion not to revoke citizenship in the case
of a person who has been determined to have misrepresented in acquiring
citizenship. The [applicant] did not seek to intervene in this case either at
first instance or on appeal. It now seeks, as set out in paragraphs 50 to 91 of
its submissions, to overturn the Court of Appeal’s ruling. It is plain and
obvious that the [applicant] cannot succeed in this argument. It has been
settled by the Court of Appeal.”
[38]
The Attorney General also relies on Oberlander, at paragraphs 43
and 58, to argue that the law is settled and that this Court is bound by that
decision. Further, the Attorney General relies upon the prior decisions in Canada
(Secretary State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.),
and Canada (Minister of Citizenship and Immigration) v. Bogutin
(1998), 144 F.T.R. 1 (T.D.). Finally, the Attorney General argues that the
applicant’s argument is difficult to understand and is circular.
[39]
Dealing with each point, I believe that, while some confusion may exist
as a result of the applicant’s comments about the existence and scope of
discretion and about “a form of prosecutorial discretion” which is exercised
when a decision is made to pursue revocation proceedings, the applicant has
stated its position clearly that “the discretion the Governor in Council now
purports to exercise does not exist.”
[40]
As to whether this argument is bereft of any possibility of success
because the law was settled by the Federal Court of Appeal in Oberlander,
it is without doubt that the Court of Appeal set aside the revocation of Mr.
Oberlander’s citizenship because “there was no balancing of the personal
interests of Mr. Oberlander and of the public interest.” See: Oberlander,
cited above, at paragraph 58. Thus, the decision of the Governor in
Council was found to be patently unreasonable.
[41]
However, that conclusion must be viewed in the context of
paragraph 42 of the Court of Appeal’s reasons in Oberlander. There, it
wrote:
The Attorney General of Canada acknowledged, in his factum
and at the hearing, that "[w]hen considering a report by the Minister to
revoke a person's citizenship, the Governor in Council must be satisfied that
the statutory criteria for revocation have been met. In addition, the
Governor in Council may engage in a delicate balancing of the individual's
personal interests, the public interest, as well as a consideration of any
relevant program policy objectives" (paragraph 60). I assume, for the
purposes of this appeal, that this acknowledgment is well-founded. The
Minister herself had acknowledged in her report, at page 41, that "[i]n
deciding whether to revoke citizenship, the Governor in Council should consider
the government's 'no safe haven policy', the findings of the Trial Judge in the
reference and any submissions made by Mr. Oberlander." [emphasis added]
[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.”
[45]
I now consider the prior decisions of Luitjens and Bogutin,
cited above, relied upon by the Attorney General.
[46]
At issue in the Luitjens case was whether an appeal lay from a
finding of this Court made under paragraph 18(1)(b) of the Act and, if
so, whether subsection 18(3) of the Act violated section 7 of the Charter.
Any comment made about the scope of the Governor in Council’s discretion was, therefore,
obiter.
[47]
In Bogutin, this Court found that Mr. Bogutin had obtained
Canadian citizenship by false representation or fraud, or by knowingly
concealing material circumstances. Justice McKeown discussed subsection 10(1)
of the Act in the following terms:
117. Subsection
10(1) of the Citizenship Act provides that a person ceases to be a Canadian
citizen if the Governor in Council is satisfied that the person has obtained,
retained, renounced or resumed citizenship by false representation or fraud or
by knowingly concealing material circumstances. In particular, paragraph
10(1)(a) of the Citizenship Act provides for an automatic statutory cessation
of citizenship in circumstances where the Governor in Council is satisfied that
a person has obtained citizenship by knowingly concealing material
circumstances. In the event that statutory cessation of citizenship takes
effect under subsection 10(1) of the Citizenship Act, the person would become a
permanent resident of Canada, as that term is defined in subsection 2(1)
of the Immigration Act, R.S.C. 1985, C1-2, as amended. As a result, the person
would be subject to all provisions of the Immigration Act including those
pertaining to removal from Canada. [emphasis added]
[48]
I
do not see how this supports the position of the Attorney General. I
note as well that, in the prior case of Canada (Minister of Citizenship and
Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.), Justice McGillis also
wrote, at paragraph 26, that “paragraph 10(1)(a) of the Citizenship Act provides
for an automatic statutory cessation of citizenship in circumstances where the
Governor in Council is satisfied that a person has obtained citizenship by
knowingly concealing material circumstances.”
[49]
To the extent the Court commented in Bogutin, that evidence as to
character and lack of good character could be presented, this related to
subsection 10(1) of the legislation in force when Mr. Bogutin applied for
citizenship. This is made clear in paragraphs 119 and 120 of the Court’s
reasons:
I must then examine the substantive
provisions governing the acquisition of citizenship in subsection 10(1) of the
Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended, which was in force in
1958-59 when Mr. Bogutin applied for and was granted citizenship. The section
reads as follows:
10. (1) The Minister may, in his discretion, grant a
certificate of citizenship to any person who is not a Canadian citizen and who
makes application for that purpose and satisfies the Court that,
(a) either he has filed in the
office of the Clerk of the Court for the judicial district in which he resides,
not less than one nor more than five years prior to the date of his
application, a declaration of intention to become a Canadian citizen, the said
declaration having been filed by him after he attained the age of eighteen
years; or he is the spouse of and resides in Canada with a Canadian citizen; or
he is a British subject;
(b) he has been lawfully
admitted to Canada for permanent residence
therein;
(c) he has resided continuously
in Canada for a period of one year immediately preceding the date of the
application and, in addition, except where the applicant has served outside of
Canada in the armed forces of Canada during time of war or where the applicant
is the wife of and resides in Canada with a Canadian citizen, has also resided
in Canada for a further period of not less than four years during the six years
immediately preceding the date of the application;
(d) he is of good character;
(e) he has an adequate knowledge
of either the English or the French language, or, if he has not such an
adequate knowledge, he has resided continuously in Canada for more than twenty years;
(f) he has an adequate
knowledge of the responsibilities and privileges of Canadian citizenship; and
(g) he intends, if his
application is granted, either to reside permanently in Canada or to enter or
continue in the public service of Canada or of a province thereof.
The relevant paragraphs in this
hearing are 10(1)(c) and (d) which deal with the acquisition of Canadian
domicile and the applicant being of good character. I agree with Collier,
J. in the Luitjens case when he ruled that evidence as to good character and
lack of good character could be presented. [emphasis added]
[50]
The
Court went on to conclude:
126. In
my view, the foregoing is sufficient to decide the reference. However, for
greater certainty, I find that Mr. Bogutin was not lawfully admitted to Canada
and therefore did not acquire Canadian domicile and he was not a person of
good character, all of which is contrary to the Immigration Act in force in
1951. Mr. Bogutin was ineligible in 1958 to apply for Canadian citizenship
and he obtained Canadian citizenship by false representation or fraud or by
concealing material circumstances. [emphasis added]
[51]
Any
comment about good character was not made in the context of the scope of the
discretion currently possessed by the Governor in Council under paragraph
10(1)(a) of the Act.
[52]
To summarize, in Oberlander, the Federal Court of Appeal was
careful to state that it proceeded on the basis that it accepted, without
deciding, that the Governor in Council was entitled to engage in a
delicate balancing of the concerned person’s interests. The other jurisprudence
relied upon by the Attorney General does not make authoritative findings about
the scope of the discretion exercised by the Governor in Council when
considering citizenship revocation. Both the Luitjens and Bogutin
decisions involved references to the Court under subsection 18(1) of the Act.
[53]
While the submissions of the applicant about the scope of the Governor
in Council’s discretion may not ultimately prevail, I do not find its
argument to be so clearly improper as to be bereft of any possibility of
success.
[54]
It follows that I find a serious question is raised.
[55]
Before leaving this point, in oral argument, Mr. Odynsky stressed that
no public interest is raised in this case and that the applicant is trying to
intervene in what is a purely private matter. However, in Harris v. Canada
(2000), 256 N.R. 221 (F.C.A.), public interest standing was granted to one
taxpayer to seek relief relating to an allegedly improper interpretation of the
Income Tax Act by the Minister of National Revenue. Notwithstanding that
the issue arose in the context of the tax treatment of an unrelated
taxpayer, standing was granted so that Mr. Harris could raise a question
about the limit of the Minister of National Revenue’s statutory authority. The
case is therefore an example of public interest standing being recognized to
exist in a private matter.
(b) A
genuine or direct interest
[56]
Mr. Odynsky argues that the decision at issue is not rooted in broad
public policy considerations and that the applicant has no direct or genuine
interest in a decision that impacts upon an individual and his relationship
with the state. The Attorney General also argues that public interest standing
is granted where there is a connection between the party seeking status and the
remedy sought. Reliance is placed upon the decision in Canadian Bar Assn. v.
British Columbia, [2006] B.C.J. No. 2015 (QL), at paragraph 51. Here, it is
said that the applicant will not in any way be affected by an order quashing
the decision not to revoke citizenship.
[57]
I begin by noting that the reference which the Attorney General relies
upon in the Canadian Bar Assn. decision was made in the context of the Court’s
determination of the existence of a serious issue and not its determination of
the existence of a genuine interest.
[58]
In Harris, cited above, the Federal Court of Appeal’s analysis of
whether Mr. Harris had a genuine issue in the litigation was as follows:
62. The
third criterion is that the public interest litigant must have a genuine
interest in the issue. On appeal, the Attorney General did not seriously
contest that Mr. Harris did have a genuine interest in the issues he raises.
Mr. Harris is a taxpayer. He is a member of an organization that seeks to
ensure the fair administration of the taxation system. Accordingly, I conclude
that Mr. Harris has a genuine interest in the issues he raises.
[59]
In
Sierra Club, cited above, Justice Evans considered whether the Sierra
Club had “an experience and expertise with respect to the underlying
subject-matter of the litigation that will inform their written and oral
submissions made in support of the application for judicial review, and will
assist the Court to reach an appropriate result.” He also considered whether
the Sierra Club had “demonstrated a degree of involvement with the subject-matter
of the application for judicial review that is sufficient to make it an appropriate
body to institute this proceeding in the public interest.”
[60]
In the present case, the Attorney General acknowledged the evidence about
the applicant’s interest in human rights in general and in war crimes.
[61]
In my view, it is not plain and obvious that a judge would conclude that
the applicant lacks sufficient experience, expertise or involvement with human
rights, war crimes, or citizenship revocation so as to have a genuine interest
in the proper interpretation of section 10 of the Act.
(c) Another
reasonable and effective way to bring the issue before the Court
[62]
The Attorney General conceded, for the purpose of this motion, that the
applicant has satisfied the third element of the test. The prothonotary agreed,
and so do I.
[63]
Mr. Odynsky, however, disagrees. He submits that it was open to the
applicant to intervene in the Oberlander case, and that it will be open
to the applicant to seek to intervene in future cases where citizenship is
revoked and the person concerned challenges that decision.
[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.
[65]
On the basis of jurisprudence such as Maurice, cited above, and the
nature of the issue raised in the Oberlander decision, I conclude that
it is not plain and obvious that a judge would conclude that another reasonable
and effective way exists to bring the issue of the scope of the Governor in
Council’s discretion before the Court.
Conclusion
and Costs
[66]
For these reasons, the appeal is allowed and the motion to strike is
dismissed.
[67]
Mr. Odynsky sought costs. The issue of costs is reserved to the judge
hearing the application for judicial review.
“Eleanor
R. Dawson”
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