Canada (Citizenship and Immigration) v. Dueck, docket A-560-96

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     STONE J.A.

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

     REASONS FOR ORDER     

     (Delivered from the Bench, at Toronto, Ontario,

     on Thursday, December 12, 1996)

PRATTE J.A.

     The respondents in these appeals apply for an order quashing the appeals on two grounds, namely that the Court has no jurisdiction to hear them and, second, that there is a reasonable apprehension of bias on the part of the members of this Court.

     The decision that is the subject of these appeals is an order of the Trial Division directing that proceedings commenced under section 18 of the Citizenship Act against each one of the respondents be stayed on the ground that it would be an abuse of process to let these proceedings continue since, in the view of the judge of first instance, there was, as a result of what he found to be a gross impropriety committed by the Chief Justice, a reasonable apprehension of lack of independence on the part of the judges of the Trial Division.

     Sections 10 and 18 of the Citizenship Act read in part as follows:

10.      (1)      Subject to section 18 [...], where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained [...] citizenship under this Act by false representations or fraud or by knowingly concealing material circumstances,

(a)      the person ceases to be a citizen [...]

* * *

18.      (1)      The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and

(a)      that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or

(b)      that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.

[...]

(3)      A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

     The respondents were notified that the Minister intended to make reports under section 10 with respect to them. They both requested that their case be referred to the Trial Division and these references had been pending for more than a year when the order appealed from was made.

     The respondents' first contention is that, pursuant to subsection 18(3), no appeal lies from this order and that, for that reason, the appeals should be quashed for lack of jurisdiction. The appellant, on the other hand, argues that the order appealed from, which directed a stay of the proceedings under section 18(1), was not a decision made under that subsection and that, as a consequence, subsection 18(3) does not apply to it.

     Subsection 18(3) is not clear. Interpreted literally, specially if its French version is taken into account, it would seem to prohibit an appeal only from a decision that a person has obtained citizenship by fraud and not from a decision that he has not so obtained his citizenship. That literal interpretation would lead to the absurd result that a right of appeal would be given only to the Minister. The subsection must therefore be interpreted. It certainly applies to the final decision of the Court on the reference whether favourable or not to the Minister.

     In many cases decided under the Immigration Act, the Court has held that a provision of that Act denying a right of appeal from a final judgment impliedly denied the right to appeal from the interlocutory decision, leading to that judgment. It follows that the prohibition contained in subsection 18(3) applies not only to the final decision on the reference but to the myriad of decisions that the Trial Division may make in the course of the reference including, in my view, a decision granting or refusing a stay of the reference proceedings.

     As my two colleagues do not share my opinion on this point, I must turn to the respondents' second contention that the appeals should be quashed by reason of a reasonable apprehension of bias on our part.

     Assuming that there be such a reasonable apprehension of bias, as the alleged bias would extend to all the members of the Court, the question that must be answered is whether the interests of justice would be better served by our denying the appellant a right of appeal to which, according to the majority of the Court, he is entitled, or by hearing the appeal and rendering a judgment that will be subject to the scrutiny of the Supreme Court of Canada. To put the question is, in my opinion, to answer it: the appeal should proceed. I need not say more on the subject since I have had the privilege of reading the reasons that my brother Stone is about to deliver and fully agree with what he says on this point.

     "Louis Pratte"

     J.A.

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     STONE J.A.

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

Motions heard at Toronto, Ontario, on Tuesday, Wednesday and Thursday, December 10, 11 and 12, 1996.

Order rendered from the Bench on Thursday, December 12, 1996.

REASONS FOR ORDER BY:      PRATTE J.A.

REASONS FOR ORDER BY:      MARCEAU J.A.

REASONS FOR ORDER BY:      STONE J.A.

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     STONE J.A.

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

     REASONS FOR ORDER

     (Delivered from the Bench at Toronto, Ontario,

     on Thursday, December 12, 1996)

MARCEAU J.A.

     I must respectfully and regrettably express my disagreement with my colleague, Mr. Justice Pratte. I see no merit in either of the two unrelated grounds upon which the motion to quash is based.

     1-      With respect to the submission that the Court is deprived of jurisdiction by subsection 18(2) of the Citizenship Act, I say as follows. It appears clear to me from the wording of the provision and from a strict analysis of the Luitjens judgment¹ that it is only a decision of the Court as to whether or not, in the words of the statute, a "person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances" that is deemed final, and for which appeal is barred. I am prepared to agree that the rules of interpretation forcefully suggest that the bar also extends to all interlocutory rulings and decisions made with a view to ultimately coming to such a decision. But a decision to impose a stay of proceedings is clearly not the very specific and precisely defined decision contemplated and, indeed, authorized by subsection 18(1) " and for that matter by any other section of the Citizenship Act " even if the Court was initially seized pursuant to that Act. It is a decision that closes the door to a reference under subsection 18(1) and disposes indefinitely of the right of the Minister to make a report under section 10. It is, therefore, a decision in the nature of a judgment under subsection 27(1) of the Federal Court Act not insulated from appeal by subsection 18(3) of the Citizenship Act.

     2-      With respect to the contention that the Court is disqualified from exercising its jurisdiction because of the existence of a conflict of interest sufficient to raise an apprehension of bias against all its members, I do not adopt my colleague' reasoning as I need not resort to the doctrine of necessity to reject it.

     I simply cannot convince myself of even a remote possibility that "an informed person, viewing the matter realistically and practically " and having thought the matter through ""² could seriously apprehend that the need to examine the conduct of the Chief Justice during a particular sequence of events could cause all the members of the Court (and more specifically the three senior members now forming the panel), sitting in appeal of a decision of the Trial Division, to be unable to remain objective or to be tempted to breach their oath of office by not judging according to their conscience.

     I reject, too, the submission that the reputation of the Court itself, and of all its members, has been so impeached in the public perception as to create a conflict of interest for all the appeal judges. I reject, as well, the suggestion that any of us could seriously be seen as subject to being influenced by fear of reprisal or by some improper communication with the Chief Justice.

     With my brother, I would dismiss the motion to quash.

     "Louis Marceau"

     J.A.

A-560-96

CORAM:      PRATTE, J.A.

         MARCEAU, J.A.

         STONE, J.A.

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

B E T W E E N:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     -and-

     JOHANN DUECK

     Respondent

     (Respondent)

     - and -

     A-561-96

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

B E T W E E N:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     -and-

     HELMUT OBERLANDER

     Respondent

     (Respondent)

     REASONS FOR ORDERS

     (Delivered from the Bench at Toronto, Ontario,

     Thursday, December 12, 1996)

STONE, J.A.:

         Two grounds are advanced by the respondents for quashing these appeals. The first is based on a want of jurisdiction; the second on reasonable apprehension of bias in the present panel because the issues in the appeals are centered in large measure on the intervention of the Chief Justice with Associate Chief Justice following an approach made to the Chief Justice by the Assistant Deputy Attorney General (Civil Litigation) on March 1, 1996.

         As for the first issue, the respondents contend that subsection 18(3) of the Citizenship Act, R.S.C. 1985, c. C-29, proscribes an appeal from the order of the Trial Division of July 4, 1996, staying the proceedings. That subsection must, of course, be read in the context of section 18 as a whole³ and of other relevant provisions of the Citizenship Act. An evident purpose of subsection 18(1) is to prevent the Minister from making a section 10 report until the required notice is given to the person in respect of whom the report is to be made and until that person either does not request that the case be referred to the Court or makes such a request and "the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances".

         In my view, the words "[a] decision" in subsection 18(3) refer to any one of a number of decisions that may be made pursuant to paragraph 18(1)(b). As this Court's decision in Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 shows, such a "decision" is not a "final" or "interlocutory" judgment within subsection 27(1) of the Federal Court Act. In other words, quite apart from the denial of a right of appeal in subsection 18(3) of the Citizenship Act, the language of subsection 27(1) of the Federal Court Act is inapplicable to a "decision" made under subsection 18(1) of the Citizenship Act. Luitjens, supra, went on to point out that even if a subsection 18(1) "decision" could be described as a "final" or "interlocutory" judgment under subsection 27(1) of the Federal Court Act, that subsection could not apply to such a "decision" because subsection 18(3) itself expressly excludes the normal application of subsection 27(1) by the words "notwithstanding any other Act of Parliament". I do not read Luitjens, supra, as deciding that the right of an appeal from a decision that is not made under subsection 18(1) but under some other Act of Parliament, is proscribed by the provisions of subsection 18(3). In particular, in my view an appeal under subsection 27(1) of the Federal Court Act from a stay granted pursuant to section 50 of the Federal Court Act is not proscribed by subsection 18(3) of the Citizenship Act.

         The second issue is based on various assertions that the Court, and particularly the present panel, is disqualified from hearing the appeals because of the existence of a reasonable apprehension of bias. Assuming that a reasonable apprehension of bias exists, in my view it ought not to disqualify the members of the panel in the circumstances. The exclusive jurisdiction bestowed by subsection 27(1) of the Federal Court Act having been invoked, the Court cannot shirk the duty placed upon it by declining to hear the appeals. It is a widely accepted and fundamental rule in the administration of justice that where a judge is interested in the result of litigation he or she cannot sit. That rule is subject to the operation of the common law doctrine of necessity, which is described in Halsbury's Laws of England (4th ed.), Vol. 1(1), at page 174 as follows:

If all members of the only tribunal competent to determine a matter are subject to disqualification, they may be authorized and obliged to hear and determine that matter by virtue of the operation of the common law doctrine of necessity.

[footnote omitted]

    

That doctrine was applied by the Saskatchewan Court of Appeal in Re The Constitutional Questions Act. Re The Income Tax Act, 1932, [1936] 4 D.L.R. 134 at page 135, where Martin, J.A. stated that the rule requiring that a judge interested in the result of litigation not sit,

... does not apply where the Court acts ex necessitate, e.g., where an action is brought against all the Judges of the Court in a matter over which the Court has exclusive jurisdiction.4

That view was affirmed on appeal by the Privy Council, [1937] 1 W.W.R. 508. As the position of the respondents is that all members of the Court are affected by the alleged bias and so disqualified from sitting, it is not possible to constitute another panel.

         The respondents seek to show that these appeals are not ones to which the doctrine of necessity can operate because it is open to the Attorney General to refer them to the Supreme Court of Canada or, if they are quashed, for the appellant, with leave of the Supreme Court, to appeal against those judgments and argue the issues raised on these appeals before that Court. I am not persuaded that either of these avenues are available here, where the appeals to this Court have yet to be heard and determined. In my view, the interests of justice would be better served by the Court hearing the appeals. Otherwise, we would in effect be denying to the appellant rights given by statute.

         I would dismiss the motions to quash.

     "A.J. STONE"

     J.A.

     IN THE FEDERAL COURT OF APPEAL

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

     REASONS FOR ORDER

__________________

¹      Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173.

²      Test defined by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369 at p. 394, and adopted by the Court in R. v. Valente, [1985] 2 S.C.R. 673 and R. v. Lippé, [1991] 2 S.C.R. 114.

³      Section 18 reads:              18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and          (a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or          (b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
     (2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
     (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

⁴      For further examples of its application see Beauregard v. The Queen, [1981] 2 F.C. 543 (T.D.); Laws v. Australian Broadcasting Tribunal, (1990) 93 A.L.R. 435 (H.C.); Re Milne and Joint Chiropractic Review Committee (1992), 90 D.L.R. (4th) 634 (Sask. C.A.); Finch v. Association of Professional Engineers and Geoscientists (B.C.) (1996), 73 B.C.A.C. 295 (B.C.C.A.)