Date: 20101112
Dockets: A-365-09
A-366-09
Citation: 2010 FCA 307
CORAM: SHARLOW
J.A.
TRUDEL
J.A.
STRATAS
J.A.
A-365-09
BETWEEN:
LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH
CANADA
Appellant
and
WASYL ODYNSKY and THE ATTORNEY
GENERAL OF CANADA
Respondents
A-366-09
BETWEEN:
LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH
CANADA
Appellant
and
VLADIMIR KATRIUK and THE
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
STRATAS J.A.
A. Introduction
[1]
Shortly
after the end of World War II, the respondents Messrs. Odynsky and Katriuk
emigrated from war-ravaged Europe. They adopted Canada as their new home. They
became citizens. They have lived in Canada ever since, for over half a century.
[2]
However,
each had a hidden past. Only recently has that past come to light. During World
War II, each served with forces, or in association with forces, that committed
brutal, inhuman crimes.
[3]
Each
concealed that past from Canada’s immigration and citizenship authorities.
Under subsection 10(1) of the Citizenship Act, R.S.C. 1985, c. C-29,
citizenship can be revoked where it was obtained by false representation or
fraud or by knowingly concealing material circumstances. Citizenship revocation
proceedings under subsection 10(1) of the Act began against Messrs. Odynsky and
Katriuk.
[4]
After an
exhaustive fact-finding process, described below, the Minister of Citizenship
and Immigration (the “Minister”) issued reports recommending that the citizenships
of Messrs. Odynsky and Katriuk be revoked. But the Governor in Council decided
to reject the Minister’s recommendations. As a result, Messrs. Odynsky and
Katriuk today remain citizens of Canada.
[5]
The
appellant is dedicated to bringing war criminals to justice, representing
victims of war crimes, and influencing government policy on these subjects. It disagreed
with the Governor in Council’s decisions. Therefore, it applied for judicial
review in the Federal Court, seeking to quash the decisions.
[6]
Each
application raised four questions for the Federal Court’s consideration:
1. Did the
appellant have the right, or “standing,” to go to the Federal Court and
challenge the Governor in Council’s decision?
2. If so,
did the Governor in Council have the power under subsection 10(1) of the Act
to reject the Minister’s recommendation?
3. If so, was
the Governor in Council’s decision to reject the Minister’s recommendation reasonable?
4. Was the
Governor in Council entitled to reject the Minister’s recommendation and decide
the matter without receiving the submissions the appellant had made to the
Minister?
[7]
The
Federal Court answered all these questions in the affirmative and dismissed the
applications for judicial review. Its reasons in Mr. Odynsky’s case are at 2009
FC 647. Its reasons in Mr. Katriuk’s case appear in an order dated June 19,
2009 and simply adopt the reasons given in Mr. Odynsky’s case.
[8]
In this
Court, the appellant submits that the Federal Court erred on all these
questions. For the reasons set out below, the Federal Court did not err.
Therefore, the appeal should be dismissed.
B. The facts
(1) The source of the facts in
these cases
[9]
The
Federal Court dealt with the appellant’s challenge largely on the basis of
facts found in earlier Federal Court proceedings. These earlier Federal Court
proceedings were part of the citizenship revocation process set out in the Act.
[10]
An
understanding of the citizenship revocation process and how it progressed in
the cases of Messrs. Odynsky and Katriuk helps to resolve the questions placed
before this Court in this appeal.
(2) The citizenship
revocation process
[11]
The key
sections in the citizenship revocation process under the Act are sections 10
and 18. They read as follows:
|
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.
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.
|
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.
18. (1) Le ministre ne
peut procéder à l’établissement du rapport mentionné à l’article 10 sans
avoir auparavant avisé l’intéressé de son intention en ce sens et sans que
l’une ou l’autre des conditions suivantes ne se soit réalisée:
a) l’intéressé n’a
pas, dans les trente jours suivant la date d’expédition de l’avis, demandé le
renvoi de l’affaire devant la Cour;
b) la Cour, saisie
de l’affaire, a décidé qu’il y avait eu fraude, fausse déclaration ou
dissimulation intentionnelle de faits essentiels.
(2) L’avis prévu au
paragraphe (1) doit spécifier la faculté qu’a l’intéressé, dans les trente
jours suivant sa date d’expédition, de demander au ministre le renvoi de
l’affaire devant la Cour. La communication de l’avis peut se faire par
courrier recommandé envoyé à la dernière adresse connue de l’intéressé.
(3) La décision de la Cour
visée au paragraphe (1) est définitive et, par dérogation à toute autre loi
fédérale, non susceptible d’appel.
|
[12]
In
summary, these sections set out the following process for citizenship
revocation:
(a) The
Minister assesses the circumstances. When the Minister is of the view that he
or she should issue a report recommending revocation of citizenship, he or she
must give notice of this to the citizen: subsection 18(1) of the Act.
(b) After
receiving the notice, the citizen may request that the matter be referred to
the Federal Court for inquiry: paragraph 18(1)(a) of the Act.
(c) The
Federal Court then inquires into whether the citizen has obtained citizenship
by false representation or fraud or by knowingly concealing material
circumstances. The Federal Court, engaged in this inquiry, often called a
“reference,” does not make any legal determination. Rather, on a reference, it
receives evidence adduced by the parties, considers examinations and
cross-examinations, engages in fact-finding and, finally, provides a ruling on
whether the citizen has obtained citizenship by false representation or fraud
or by knowingly concealing material circumstances. This “provides the Minister
with the factual basis for her report and in some point in the future may
constitute the foundation of a decision by the Governor-in-Council”: Canada
(Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1
at paragraph 118, 42 Imm. L.R. (2d) 248 (T.D.).
(d) After
the Federal Court has acted on the reference and made all of its findings, the
Minister may then issue a report to the Governor in Council: subsection 10(1)
of the Act.
(e) The
Governor in Council then acts under subsection 10(1). Precisely what the
Governor in Council may do under subsection 10(1) is a central question in this
appeal.
[13]
All of
these steps happened in the cases of Messrs. Odynsky and Katriuk. Specifically,
upon receiving notice that the Minister intended to issue a report recommending
the revocation of their citizenships, Messrs. Odynsky and Katriuk requested
that the matter be referred to the Federal Court. In each case, the Federal
Court inquired into the matter and made many factual findings.
[14]
In Mr.
Odynsky’s case, the Federal Court conducted the reference using procedures akin
to an action, with pleadings, pre-trial preparations and oral hearings held in
Ukraine and Canada. The Minister and Mr. Odynsky called witnesses. The
witnesses were examined and cross-examined. Some of the witnesses served with
Mr. Odynsky during the war and had first-hand recollections of his involvements
and activities. At the conclusion of the reference, the Federal Court set out
its factual findings concerning Mr. Odynsky’s case: Canada (Minister of
Citizenship and Immigration) v. Odynsky, 2001 FCT 138, 196 F.T.R. 1 (T.D.)
(the “Odynsky Reference”). Its reasons – 229 paragraphs of rich and helpful
detail – carefully describe Mr. Odynsky’s wartime activities, the harrowing
circumstances in which he was ensnared during the war, the events surrounding
his emigration to Canada, and his acquisition of Canadian citizenship.
[15]
In Mr.
Katriuk’s case, the Federal Court conducted the reference by way of
application. In that application, the Minister sought a declaration that Mr.
Katriuk obtained his citizenship by false representation or fraud or by
knowingly concealing material circumstances. The Court conducted sixteen days
of hearing. Evidence was available from some who had first-hand recollections
about Mr. Katriuk’s wartime activities. As was the case in the Odynsky
Reference, the Federal Court’s reasons, 154 paragraphs in length, show
great attention to detail and reflection and are a model of careful
fact-finding: Canada (Minister of Citizenship and Immigration) v. Katriuk
(1999), 156 F.T.R. 161 (T.D.) (the “Katriuk Reference”).
[16]
None of
the parties in the Federal Court or in this Court have taken issue with the
facts found in the references.
[17]
In both
references, based on the evidence presented, the Federal Court found that Mr.
Odynsky and Mr. Katriuk had obtained their citizenship by false representation
or fraud or by knowingly concealing material circumstances.
(3) The facts as found
in the Federal Court references
[18]
What
follows is a brief summary of the factual findings of the Federal Court in the Odynsky
Reference and the Katriuk Reference. These findings were available
to the Minister and formed the basis of the Governor in Council’s decisions in
this case.
(a) Mr. Odynsky
[19]
When World
War II started, Mr. Odynsky was working on his family farm near Beleluja in the
Western Ukraine. In June 1941, Beleluja fell under Nazi occupation. Soon afterward,
the Nazi occupiers conscripted young men in Ukraine to serve their purposes.
Mr. Odynsky was one such young man. In 1943, the Nazis took him from his farm
and made him serve with their military and police services.
[20]
In the Odynsky
Reference, the Federal Court found that Mr. Odynsky was forced to serve the
Nazi occupiers. Indeed, on one occasion, he defied them, narrowly escaping
devastating consequences (at paragraphs 27-29):
Mr. Odynsky was caught up in the German
sweep for younger people to assist their forces. In early February 1943, the
mayor of his village was directed to provide a list of young men born in the
years 1920 to 1924 and to send those individuals to Snyatyn, which he did.
Among those sent to Snyatyn was Mr. Odynsky. There he and four others from
Beleluja were selected among many others, and they were told that they were
required to serve with the German army forces. They were permitted to return
home but were ordered to report a few days later, on February 10, at Kolomyja.
If they did not return as directed they would be subject to arrest.
The five young men selected from Beleluja
returned home. They did not show up on February 10, as they had been directed
to do. Rather, they hid in the fields nearby and in the village. In April the
Gestapo, with local police, came to the village looking for those who had
failed to report in February as ordered. They directed that if those missing
young men did not show up in the village within a limited time their families
would be taken away.
Mr. Odynsky and the others surrendered.
They were all taken by horse and wagon to Snyatyn, and threatened with death if
they tried to escape again. After two weeks in the local jail they were taken
to Kolomyja where they were imprisoned for two more weeks. While there, they
were threatened with death for deserting by not reporting as directed, but a
local lawyer, interceding on their behalf, succeeded in having this threat
lifted. They were spared, but were warned that any escape would be punished by
death when they were caught, or if they were not caught, their families would
be sent to concentration camps.
[21]
Somewhat
later, Mr. Odynsky, with others, was sent to a training camp at Trawniki, in
Eastern Poland under the supervision of the Schutz-Staffel, better known as the
SS. The SS terrorized Nazi-occupied Europe in many ways. But what it did to the
Jews will be remembered as long as there are decent people to remember.
[22]
In
addition to the training camp at Trawniki, the SS operated a forced labour camp
at Trawniki. There, Jews were imprisoned and were forced to produce clothing
and other goods for German forces.
[23]
After some
weeks of basic training at the Trawniki training camp, Mr. Odynsky, with other
trainees, was sent to serve as a guard near the grounds of a forced labour camp
operated by the SS at Poniatowa. At the Poniatowa camp, Jews, primarily those
from the Warsaw ghetto, were imprisoned and were forced to manufacture uniforms and other
supplies, under the direction of German civilian corporations, the military,
and SS forces.
[24]
On a
single day during the fall of 1943, German police and SS forces extinguished
the lives of 15,000 men, women and children imprisoned at the Poniatowa camp.
In today’s terms, this is the murder on a single day of every single man, woman
and child in Edmundston, NB, Baie-Comeau, QC, Fort Erie, ON, Portage la
Prairie, MB, Yorkton, SK or Prince Rupert, BC.
[25]
The
Federal Court in the Odynsky Reference (at paragraphs 36 and 201)
describes this horrific day:
In the fall of 1943, the operation of the
forced labour camp at Poniatowa was suddenly terminated. On November 3 or 4,
1943…[i]n less than a full day German police and SS forces, apparently
including some of the Einsatzgruppen or killing squads commanded by the SS,
marched the prisoners, men, women and children, to large trenches outside the
main camp. These trenches the prisoners had been forced to dig earlier, on the
pretence these were to be defence works for the camp. When the prisoners
reached the trenches they were ordered to undress and enter the trenches naked,
where they were then executed by shooting.
…
[Afterward] there were no longer any labourer-prisoners or
their families to be seen at the camp. A few were spared and ordered to burn
the corpses which they refused to do, and so they too were executed.
[26]
What was
Mr. Odynsky’s involvement in all of this? On this subject, the Federal Court heard
evidence from Mr. Odynsky, those engaged as guards at the Seidlung, and three
men at Poniatowa. That
evidence showed that Mr. Odynsky did not serve as a guard at the Poniatowa
camp. Instead, he served as a guard about a kilometer away, at an area known as
the Seidlung. At the Seidlung, there were apartment buildings for certain
favoured prisoners, and for German civilian factory supervisors. Mr. Odynsky
patrolled and guarded the perimeter of the Seidlung area and checked the
prisoners who left each morning for the Poniatowa camp and who returned at
night to the Seidlung from their forced labours.
[27]
Mr.
Odynsky had no direct personal involvement in the massacre at Poniatowa. In the
words of the Federal Court (at paragraphs 36-38):
On November 3 or 4, 1943, the Trawniki
men were confined to their barracks at night and were not permitted to leave
until late the next day.
…
Mr. Odynsky's evidence is that he had
seen prisoners assembled and marched from the Seidlung, that gunfire was heard
all day, and that a Ukrainian officer had told him the Germans were killing the
Jews. When he and his fellows were permitted to leave their barracks there were
no Jewish labourers to be seen at Poniatowa, either at the Seidlung or at the
main camp.
…
There is no evidence that Mr. Odynsky had
any extended contact with Jewish labourer-prisoners at Poniatowa, or with
guarding them except in guarding the perimeter of the Seidlung. There is no
evidence that he or any of his Ukrainian colleagues at the Seidlung had any
part in Operation Erntefest, or in the subsequent massacre of those left to
burn the corpses.
[28]
Importantly,
in the Odynsky Reference, the Federal Court found (at paragraph 111)
that “there was no
evidence before the Court of any particular activity of Mr. Odynsky that could
be characterized as brutal or criminal, or as directly threatening to any
individual.” In particular, during his time at Trawniki and Poniatowa, there
was “no evidence at trial that Mr. Odynsky participated personally in any
incident involving mistreatment of prisoners” (at paragraph 207).
[29]
During the
two years after the Poniatowa massacre, Mr. Odynsky guarded the facilities
against partisan attack and then served in a battalion, known as SS Battalion
Streibel.
[30]
The
Federal Court found that none of his wartime service could be said to be
voluntary (at paragraph 206):
In my opinion there is no doubt that Mr. Odynsky's service
at Trawniki and Poniatowa, and even with SS Battalion Streibel was not
voluntary. It was urged by the plaintiff that at some stage in 1944 or 1945,
with the Russian forces advancing, he made no effort to escape or simply to be
absent without leave, and thus his continuing service should be considered
voluntary. He believes he would have been shot if captured after leaving and
that he would have put his family in jeopardy, at least so long as German
forces were in western Ukraine. There was no evidence about a particular time
after which his service might be considered voluntary and I am persuaded that
it continued to be involuntary until the end of the war.
[31]
The Federal
Court added (at paragraph 107) that “he did not escape at any time because of
his understanding that unsuccessful attempts to escape would result in death or
severe punishment, and if he did escape and were not captured, his family would
be sent to a concentration camp or worse.”
[32]
After the
end of the war, Mr. Odynsky made his way westward to a portion of Germany
occupied by American forces. He ended up in an American POW camp, and later,
following release, made his way to a camp for those who did not wish to return
to Ukraine, by that time under Soviet occupation. Shortly afterward, he went
to another camp for displaced persons. The International Relief Organization
took over the operation of that camp with a view to assisting displaced persons
to resettle in countries other than their homelands. It was there that in 1948
Mr. Odynsky learned that Canada was seeking workers for mining and farm work.
He decided to emigrate to Canada.
[33]
Mr.
Odynsky applied for and was accepted for immigration to Canada. He landed in
1949. Later, Mr. Odynsky and his wife moved to Toronto. There they established
their home and their family life within the Ukrainian community, and had three
children. They became Canadian citizens in 1955. The application record before
the Federal Court in this case contains evidence that Mr. Odynsky has been a
good and positive citizen since that time.
[34]
In the Odynsky
Reference (at paragraph 227), the Federal Court found that Mr. Odynsky
failed to answer questions about his wartime activities when he emigrated to
Canada and when he applied for Canadian citizenship:
This Court finds, on a balance of probabilities in
considering certain key factual issues, that the defendant, Wasyl Odynsky, was
admitted to Canada for permanent residence in July 1949 on the basis of a visa
obtained by reason of false representations by him or by his knowingly
concealing material circumstances. Subsequently he obtained citizenship in 1955
when, having been admitted to Canada, on that basis, he is deemed, pursuant to
s-s. 10(2) of the Act, to have acquired citizenship by false
representation or knowingly concealing material circumstances.
[35]
Before
concluding its reasons, the Federal Court in the Odynsky Reference added
these final comments (at paragraph 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 Poniatowa, 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.
(b) Mr. Katriuk
[36]
When World
War II started, Mr. Katriuk was working in the meat trade in an area known as
Bukovina, which was then part of Romania. In 1939, troops of the Soviet Union
occupied Bukovina. In June 1941, Germany invaded and occupied Bukovina.
[37]
Mr.
Katriuk was of Ukrainian ancestry. In the fall of 1941, along with many of his
Ukrainian compatriots in Bukovina, he joined a volunteer force. That force
marched to the Ukraine. It arrived in Kiev, but by that time the Nazis had
already taken Kiev. Soon new German battalions were formed. Mr. Katriuk became
a member of one of these.
[38]
Was this
voluntary on Mr. Katriuk’s part?
The Federal Court
reasons in the Katriuk Reference (at paragraph 73) tell us that the
evidence on this was unclear. The Federal Court did not find Mr. Katriuk to be
“entirely candid” on this topic. It mooted several possibilities based on the
evidence before it. Perhaps Mr. Katriuk hoped for better living conditions.
Perhaps he wanted to avoid hunger. Perhaps he, like other Ukrainians, preferred
the Germans to the Soviets who had first occupied the Ukraine. However, the
Federal Court did not find that Mr. Katriuk was motivated by any particular animus.
[39]
As a
member of his battalion, Mr. Katriuk was stationed in places such as
Byelorussia, guarding against attacks and sabotage by local partisans and
maintaining law and order.
[40]
In the Katriuk
Reference, Mr. Katriuk tried to put the best possible light on his
involvement with the battalion. He testified that he did not participate in any
important military operations while his battalion was in Byelorussia. The
Federal Court rejected this testimony (at paragraphs 51 and 66), finding that
he was “certainly engaged in fighting enemy partisans” and “must have
participated in at least some of its operations.” However, it is unclear
exactly what operations he participated in. The Federal Court noted (at
paragraph 72) that if Mr. Katriuk left the battalion, he might have faced the
firing squad.
[41]
Mr.
Katriuk’s battalion committed atrocities and war crimes against the civilian
population of Byelorussia. Some evidence in the Katriuk Reference
suggested that many unarmed persons were killed and many were seized for forced
labour. Importantly, however, on the state of the evidence before it, the
Federal Court (at paragraph 67) was not prepared to find that Mr. Katriuk was personally
involved in any of the atrocities and war crimes.
[42]
In August
of 1944, his battalion was merged with another, was transported to France and became part of the Waffen
S.S. 30th Grenadier Division. One day, Mr. Katriuk and others were informed
that they would be fighting the allies the next day. That evening, a majority
of men, including Mr. Katriuk, defected to partisans with the French underground.
[43]
Soon, Mr.
Katriuk and others went to fight at the French front against Germany. During
that time, Soviet officers came to visit them with a request that they rejoin
the “motherland.” Mr. Katriuk did not want to return to Russia, as he feared
that he would be sent to Siberia.
[44]
As a
result of Soviet pressure, Mr. Katriuk and some of his colleagues were removed
from the front, sent to the village of Dumblair, and told that they would have
to return to Russia. The only way they could avoid this was to join the French
Foreign Legion. This Mr. Katriuk did. He fought with the French Foreign Legion
on the French front and the Italian front and was wounded in combat.
[45]
The
Federal Court in the Katriuk Reference engaged in an exhaustive review
of the evidence concerning the circumstances surrounding Mr. Katriuk’s
emigration to Canada after the war. It found that Mr. Katriuk entered Canada
under a false identity. Later, when applying to change his name, Mr. Katriuk
stated that he “took refuge in France.” This was not “an accurate and truthful
statement.” As a result, the Federal Court found that Mr. Katriuk had obtained
his Canadian citizenship by false representation or fraud or by concealing
material circumstances.
(4) The reports prepared by the
Minister
[46]
After each
of the Odynsky Reference and the Katriuk Reference, the Minister
prepared reports to the Governor in Council. During the preparation of the
reports, Messrs. Odynsky and Katriuk were given an opportunity to make
submissions regarding why their citizenships should not be revoked.
[47]
The report
of the Minister concerning Mr. Odynsky consisted of a seven page covering
memorandum recommending that his citizenship be revoked, the reasons for
judgment in the Odynsky Reference, and eight tabs of correspondence and
submissions by the Department of Justice and Mr. Odynsky. Included in these
materials were policy statements of the Government of Canada concerning war
crimes and war criminals living in Canada.
[48]
The report
of the Minister concerning Mr. Katriuk consisted of a five page covering
memorandum recommending that his citizenship be revoked, the reasons for
judgment in the Katriuk Reference, and ten tabs of correspondence and
submissions by the Department of Justice and Mr. Katriuk. As in the case of the
report concerning Mr. Odynsky, the materials included policy statements of the
Government of Canada concerning war crimes and criminals living in Canada.
[49]
In
accordance with subsection 10(1) of the Act, the Minister issued these two
reports to the Governor in Council for its consideration. At roughly the same
time, the Minister sent two other reports under subsection 10(1) to the Governor
in Council. These concerned Messrs. Oberlander and Fast. In these, the Minister
also recommended that the citizenships be revoked.
(5) The decisions of the Governor
in Council
[50]
The
Governor in Council considered all four reports together. The Governor in
Council decided that the citizenships of Messrs. Odynsky and Katriuk should not
be revoked, but the citizenships of Messrs. Oberlander and Fast should be
revoked.
[51]
In this
Court, the respondent Attorney General submitted that the differing results in
the four cases show that the Governor in Council carefully considered each
case’s complex considerations and reached different, fact-based, discretionary
conclusions.
(6) The applications for judicial
review in the Federal Court
[52]
The
appellant brought applications for judicial review of the Governor in Council’s
decisions not to revoke the citizenships of Messrs. Odynsky and Katriuk. Mr.
Odynsky moved to strike the application for judicial review in his case on the
ground that the appellant did not have standing to bring it.
[53]
The
Prothonotary granted Mr. Odynsky’s motion and dismissed the application for
judicial review: 2008 FC 146, 323 F.T.R. 174. The appellant appealed to a judge
of the Federal Court. The Court allowed the appellant’s appeal. It ruled that
while the appellant did not have direct standing to bring the application, it
might have standing as a public interest litigant. It ruled that the judge
hearing the merits of the application should determine the issue: 2008 FC 732,
334 F.T.R. 63.
[54]
The
Federal Court heard the merits of the appellant’s two applications for judicial
review together. It held that the appellant could not relitigate the motions
judge’s finding that it did not have direct standing to bring the applications
for judicial review: 2009 FC 647 at paragraph 9, 349 F.T.R. 35. However, the
Federal Court held that the appellant did have standing as a public interest
litigant (at paragraphs 11-17). Finally, as mentioned in paragraphs 6-7 above,
the Federal Court dismissed the applications for judicial review on their
merits. The appellant now appeals to this Court.
(7) The parties’ submissions in
this Court
[55]
The
appellant submits that the Governor in Council was bound under subsection 10(1)
of the Act to accept the recommendations in the Minister’s reports. As a
result, the Governor in Council should have revoked the citizenships of Messrs.
Odynsky and Katriuk. In the alternative, to the extent that the Governor in
Council did have the power to depart from the Minister’s recommendations in the
reports, the appellant says that the Governor in Council exercised its
discretion unreasonably. Finally, the appellant says that, as a matter of
procedural fairness, the Governor in Council should have received the
submissions the appellant provided to the Minister. The appellant notes that
the Governor in Council had before submissions of the Ukrainian Canadian Congress,
but not any of those of the appellant.
[56]
The
respondents urge this Court to find that the appellant lacked standing to
challenge the Governor in Council’s decisions. They also say that, properly
interpreted, subsection 10(1) of the Act empowered the Governor in Council to
reject the Minister’s recommendations and that in doing so the Governor in
Council exercised its discretion reasonably. Further, the respondents submit
that the Governor in Council owed the appellant no duty of procedural fairness
and was under no obligation to receive and consider the submissions that the
appellant made to the Minister.
C. Analysis
(1) Did
the appellant have standing to bring the applications for judicial review?
(a) Direct standing
[57]
The
appellant submits that it has direct standing to bring the application for
judicial review against the decisions of the Governor in Council because it is
“directly affected” within the meaning of subsection 18.1(1) of the Federal
Courts Act, R.S.C. 1985, c. F-7. That subsection provides that those who
are “directly affected” may bring an application for judicial review.
[58]
The
appellant is not “directly affected.” In order for it to be “directly
affected” by the decisions of the Governor in Council, the decisions must have
affected its legal rights, imposed legal obligations upon it, or prejudicially
affected it in some way: Rothmans of Pall Mall Canada Ltd. v. Canada (M.N.R.),
[1976] 2 F.C. 500 (C.A.); Irving Shipbuilding Inc. v. Canada (A.G.),
2009 FCA 116. There is no evidence before this Court suggesting that the
appellant is affected in this way. I adopt the words of the motions judge (2008
FC 732 at paragraph 26):
Without doubt, the [appellant] 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.
(b) Public interest
standing
[59]
In the
alternative, the appellant submits that it has standing as a public interest
litigant to challenge the decisions of the Governor in Council. It says that it
meets the three fold test for public interest standing set out in the Supreme
Court of Canada’s reasons for judgment in Canadian Council of Churches v.
Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236,
namely, that:
(a) a
serious issue has been raised;
(b) the
party seeking public interest standing has a genuine or direct interest in the
outcome of the litigation; and
(c) there
is no other reasonable and effective way to bring the issue before the Court.
[60]
The
applications judge found that the appellant met all three of these
requirements: 2009 FC 647 at paragraphs 11-17. In this Court, the respondent
Attorney General does not submit that the Federal Court committed fundamental
error or somehow misapprehended the evidence before it. It is evident that the
applications judge applied proper principles to the facts before him. There is
no ground for this Court to intervene.
[61]
Before
leaving this issue, I would add that the granting of public interest standing
in this case is consistent with a significant policy concern mentioned by the
Supreme Court of Canada in Canadian Council of Churches, supra.
At page 256, the Supreme Court expressed concern that an overly restrictive
approach to public interest standing would immunize government from certain
challenges. This Court has granted public interest standing where the spectre
of immunization of government decisions was in play and the Canadian Council
of Churches criteria for intervention were met: Harris v. Canada,
[2000] 4 F.C. 37 (C.A.).
[62]
The
concern about immunization is in play in these cases, just as it was in Harris,
supra. The Governor in Council’s decisions were in favour of Messrs.
Odynsky and Katriuk. None of the parties would proceed to Court from the
decisions, because the decisions did not adversely affect them. As the
applications judge stated (at paragraph 16), “[i]n a case like this one where
citizenship is not revoked, the [Governor in Council’s] decision will never be
judicially reviewed except where a third party seeks to do so.” By virtue of
its past knowledge, experience and dedicated efforts on issues such as this,
the appellant was well placed to test the decisions of the Governor in Council
in the courts. If public interest standing were not granted to this appellant,
the decisions of the Governor in Council would be immune from review. That is
to be avoided.
(2) The interpretation
of subsection 10(1) of the Act: did the Governor in Council have the power to
reject the Minister’s recommendations and decide not to revoke the citizenships
of Mr. Odynsky and Mr. Katriuk?
[63]
Subsection
10(1) of the Act provides as follows:
|
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.
|
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.
|
[64]
The plain
language of this subsection, if read literally and in isolation, restricts the
role of the Governor in Council. Under this interpretive approach, the Governor
in Council simply reads the report of the Minister, notes that the Federal
Court has found that citizenship has been obtained by false representation or
fraud or by knowingly concealing material circumstances, and then sets a date
on which the person ceases to be a citizen. Under this interpretative approach,
the Governor in Council is just a date-setter. This is the position that the
appellant urges us to accept.
[65]
The respondent
Attorney General, supported by Messrs. Odynsky and Katriuk, disagrees. The
Attorney General submits that such a literal reading of subsection 10(1) would
reduce the role of the Governor in Council to nothing more than a “rubber
stamp.” The Governor in Council’s only task would be to pick up a calendar and
set a date for the revocation of citizenship. The respondent Attorney General
says that such a result could not have been what Parliament intended when it
enacted this scheme for citizenship revocation.
[66]
The
applications judge agreed with the Attorney General’s position. He noted (at
paragraph 31) that, on a literal reading of subsection 10(1) of the Act, “[i]t
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.” However, in his view (also at paragraph 31), “it does not
necessarily follow that all other factors are thereby excluded from
consideration either by the Minister or the [Governor in Council].” He noted
(at paragraph 32) that the legislative context supports the position that the
Governor in Council’s authority under subsection 10(1) is “more than a mere
formality” and that the Governor in Council “enjoys a broad discretion” to review
the recommendation of the Minister that citizenship be revoked.
[67]
I agree
with the applications judge, for many of the reasons he offered. In particular,
I offer six reasons in support of this conclusion.
– I –
[68]
The
applications judge was correct to go beyond the literal meaning of subsection
10(1) and instead examine the subsection in light of its context and the
purpose of the Act.
[69]
Obviously,
the literal meaning of a legislative provision is important. That is the
starting point in the task of interpretation. But it is not the ending point.
[70]
The
Supreme Court has repeatedly reminded us not to read provisions in only a
literal way, applying only the dictionary meaning of the words. Provisions are
not to be read as if they stand alone, unrelated to other provisions and other
laws, and without regard to the overall purpose of the legislation or
Parliament’s intention. See Re Rizzo & Rizzo Shoes Ltd., [1998] 1
S.C.R. 27 at paragraph 23; Bell ExpressVu Limited Partnership v. Rex,
2002 SCC 42 at paragraphs 26-27, [2002] 2 S.C.R. 459.
[71]
As will be
seen below, an examination of the wider context and the purpose of the Act
confirms that Parliament intended a role for the Governor in Council that is
much broader than date-setting.
– II –
[72]
If the
Governor in Council’s role under subsection 10(1) were restricted to
date-setting, there would be no need for the Governor in Council to receive a
formal report from the Minister under subsection 10(1). Rather, a simple notice
would suffice.
[73]
The
requirement that a report be prepared suggests that Parliament intended that
the Governor in Council exercise a broader role. In the words of the
application judge (at paragraph 35), “[i]t is difficult to think of a purpose
that would be served by a ministerial report to the [Governor in Council]” if
the Minister were just a date-setter.
– III –
[74]
The
legislative context surrounding the Minister’s report must also be considered.
This is not any old report. This is a report that is the end product of a long
and intricate process. Subsection 10(1) tells us that before the Minister can
send the report to the Governor in Council, the affected person must receive
notice and must have an opportunity to ask for a reference to the Federal
Court. This suggests that the Minister’s report should be shaped and influenced
by the Federal Court’s factual findings in the reference and other matters
raised by the affected person.
[75]
Does it
make sense that Parliament would require that the Governor in Council receive such
a report, shaped and influenced by information gathered after a long and
intricate process, but then limit the Governor in Council to date-setting? I
think not. Parliament would have to enact clearer words to achieve such a
result.
– IV –
[76]
In
assessing the scope of a decision-maker’s discretion, sometimes it is helpful
to consider the nature of the body that is exercising the discretion. In
subsection 10(1), Parliament has nominated the Governor in Council as the body
to receive the report.
[77]
The
Governor in Council is the “Governor General of Canada acting by and with the
advice of, or by and with the advice and consent of, or in conjunction with the
Queen’s Privy Council for Canada”: Interpretation Act, R.S.C.
1985, c. I-23, subsection 35(1), and see also the Constitution Act, 1867,
sections 11 and 13. All the Ministers of the Crown, not just the Minister, are
active members of the Queen’s Privy Council for Canada. They meet in a body
known as Cabinet. Cabinet is “to a unique degree the grand co-ordinating body
for the divergent provincial, sectional, religious, racial and other interests
throughout the nation” and, by convention, it attempts to represent different
geographic, linguistic, religious, and ethnic groups: Norman Ward, Dawson’s
The Government of Canada, 6th ed., (Toronto: University of Toronto
Press,1987) at pages 203-204; Richard French, “The Privy Council Office:
Support for Cabinet Decision Making” in Richard Schultz, Orest M. Kruhlak and
John C. Terry, eds., The Canadian Political Process, 3rd ed. (Toronto:
Holt Rinehart and Winston of Canada, 1979) at pages 363-394.
[78]
In
practical terms, then, a statute that vests decision-making in the Governor in
Council implicates the decision-making of Cabinet, a body of diverse policy
perspectives representing all constituencies within government.
[79]
Did
Parliament really intend in subsection 10(1) to restrict this body to a narrow
date-setting function? Or did Parliament intend this body to review the
entirety of the situation, as reflected in the Minister’s report, and make a
final substantive decision on whether citizenship should be revoked? In my view,
the latter seems more plausible given the nature of this legislative scheme and
the vesting of final authority in the Governor in Council.
– V –
[80]
Revocation
of citizenship is a most important matter. Citizenship of Canada gives
Canadians certain rights. Some of these are so important that they are
guaranteed under our Constitution. These include the right to vote under
section 3 of the Charter and the right to enter, remain in, and move about
Canada under section 6 of the Charter. Given the consequences of revoking
citizenship, it makes sense that Parliament would enact a scheme that provides
for judicial fact-finding, a Ministerial recommendation, and then a final level
of full review by a broad body representing all constituencies and perspectives
within government.
– VI –
[81]
It is fair
to say that the point raised by the appellant concerning the interpretation of
subsection 10(1) has never been put directly to this Court for decision.
However, there are authorities that suggest that subsection 10(1) gives the
Governor in Council a wide discretion to review the entire situation on all the
facts and, if appropriate, to reject the Minister’s recommendation:
(a) In Oberlander
v. Canada (A.G.), 2009 FCA 330, 313 D.L.R. (4th) 378, this Court remitted
the matter back to the Governor in Council for consideration as to whether
duress excused Oberlander’s complicity in war crimes under Canada’s war crimes
policy. This Court held (at paragraph 39) that “it is critical that all
relevant issues be considered and analyzed.” This supports the respondents’
view that the Governor in Council’s discretion under subsection 10(1) extends
beyond date-setting to a broad consideration of whether, in all of the
circumstances, the revocation of citizenship is warranted.
(b) In Oberlander
v. Canada (A.G.), 2003 FC 944, [2003] F.C.J. 1201, the Federal Court noted
(at paragraph 18) that “[a]lthough the rights of the individual are at stake,
there are elements of general policy involved in the decision to revoke
citizenship” and those elements are considered “by the highest political organ
of the Canadian Government,” the Governor in Council. This Court reversed the
Federal Court’s decision, but did not disagree with its views on this point:
2004 FCA 213, [2005] 1 F.C.R. 3. However, as the motions judge in the cases at
bar has explained, this Court’s decision was affected by a concession made by
the Minister in argument: 2008 FCA 732 at paragraphs 40-44.
(c) In Bogutin
supra, the Federal Court, acting in a reference, offered certain
observations concerning the citizenship revocation process under the Act. It
clearly contemplated a wide role for the Governor in Council (at paragraph
113):
The Court in these proceedings is making
findings of fact and making a report to the Minister. It does not follow that
the Governor in Council is therefore compelled to revoke the citizenship of the
respondent. The Minister has to consider a report and send it to the Governor
in Council. The Governor in Council has to make a decision whether to revoke
citizenship or not.
(d) This
Court in Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173
described the Federal Court’s role on a reference under the Act – determining
whether there has been false representation, fraud or knowing concealment of material
circumstances –
as “merely one stage of a proceeding which may or may not result in a final
revocation of citizenship.” The clear implication is that the Minister and the
Governor in Council may take into account other matters. In the words of the
applications judge in the cases at bar (at paragraph 35), the statement of this
Court in Luitjens “is difficult to reconcile with the proposition that
the sole determinative issue for revoking citizenship is one already
conclusively determined by the Federal Court.”
(e) The
appellant has not cited to this Court any authorities that establish that the
Governor in Council’s role is limited to date-setting.
[82]
For all of
the foregoing reasons, I conclude that Parliament gave the Governor in Council
a broad discretion under subsection 10(1) to decide whether a person’s
citizenship should be revoked. The Governor in Council is not forced to accept
the Minister’s recommendation that the person’s citizenship be revoked. The
Governor in Council is not just a date-setter.
(3) Was the Governor in Council’s
decision reasonable?
[83]
The
applications judge held that it should review the Governor in Council’s
decisions on the deferential standard of reasonableness. The applications judge
found that the decisions were reasonable (at paragraph 44).
[84]
The
appellant agrees that if the Governor in Council had the authority under
subsection 10(1) of the Act not to revoke the citizenships of Messrs. Odynsky
and Katriuk, the standard of review is reasonableness. The appellant submits
that the applications judge erred: the Governor in Council’s decisions were not
reasonable.
[85]
Under the
standard of reasonableness, our task is not to find facts, reweigh them, or
substitute our decision for the Governor in Council. Rather, our task is to ask
ourselves whether the decision of the Governor in Council fell within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law. (See Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 47,
[2008] 1 S.C.R. 190.)
[86]
In
assessing what range of defensible outcomes was available to the Governor in
Council, we must be mindful of the Governor in Council’s task and what it
involved. In this case, the Governor in Council’s task was to consider the
record presented to it in the form of the Minister’s report and to consider
whether citizenship revocation was warranted in the circumstances. Subsection
10(1) does not provide any specific criteria or formula for the Governor in
Council to follow in carrying out this task. It leaves the Governor in Council
free to act on the basis of policy, but those policies cannot conflict with the
Act or its purposes: Thamotharem
v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385.
[87]
In this case,
the Government of Canada has developed war crimes policy. None of the parties
in this Court suggests that it was inappropriate or should not have been
applied to these cases. Accordingly, in these cases, if the Governor in Council
measured the facts contained in the Minister’s report against the war crimes
policy of the Government of Canada and reached a rationally defensible result
in its decisions under subsection 10(1) of the Act, they should be regarded as
reasonable. Put another way, in the circumstances of these cases, a rationally
defensible application of a previously announced, unchallenged policy should be
taken as a badge of reasonableness under Dunsmuir.
[88]
In both Mr.
Odynsky’s case and Mr. Katriuk’s case, the Minister described the Government of
Canada’s war crimes policy in its reports. None of the parties suggest that the
description is inaccurate. The description as follows:
The policy of the Canadian Government is unequivocal: Canada
is not and will not become a safe haven for persons involved in war crimes,
crimes against humanity or other reprehensible acts regardless of when or where
they occurred.
The government pursues only those cases for which there is
evidence of direct involvement or complicity in war crimes or crimes against
humanity. A person may be considered complicit if the person is aware of the
commission of war crimes or crimes against humanity and contributes directly or
indirectly to their occurrence. Membership in an organization responsible for
committing the atrocities can be sufficient to establish complicity if the
organization in question is one with a limited brutal purpose, such as a death
squad.
[89]
In these
cases, the Governor in Council’s decisions not to revoke the citizenships of
Mr. Odynsky and Mr. Katriuk are rationally defensible. It was open to the
Governor in Council to find that the facts as found in the Odynsky Reference
and the Katriuk Reference do not implicate any of the three main elements
of Canada’s war crimes policy:
(a) Direct
involvement or complicity. The Federal Court did not find that Mr. Odynsky
and Mr. Katriuk were directly involved or directly complicit in war crimes or
crimes against humanity.
(b) Awareness
or contribution. The Federal Court did not find that Mr. Odynsky and Mr.
Katriuk were aware
of the commission of war crimes or crimes against humanity, nor did it find
that they contributed directly or indirectly to their occurrence.
(c) Membership.
The policy, as summarized above, simply says, without elaboration, that
membership in an organization with a “limited brutal purpose,” such as a death
squad, “can be sufficient” for revocation of citizenship. But the policy does
not identify the circumstances when membership alone would suffice. Under
subsection 10(1) of the Act, as interpreted above, that would be left for the
Governor in Council to decide, guided by the purposes of the Act and any
jurisprudence on point. In the latter regard, this Court has already decided
that
although membership in a limited brutal purpose organization creates a
presumption of complicity, that presumption can be rebutted by evidence showing
that the person had no knowledge of the purpose of the organization or direct
or indirect involvement in its acts: Oberlander (2009), supra at
paragraph 18. In
my view, in light of the foregoing, the Governor in Council arrived at a
rationally defensible outcome concerning the element of membership:
(i) Mr.
Odynsky was a member of a team of guards at Poniatowa. However, there was
evidence upon which the Governor in Council could find that Mr. Odynsky’s
membership was involuntary, he was stationed at the Seidlung, he was in no way
associated with those who carried out the massacre of 15,000 people, and he was
specifically kept away from the camp on the day of the massacre. (See
paragraphs 26-31, above.)
(ii) In Mr.
Katriuk’s case, he was an active member of his battalion and “must have
participated in at least some of its operations. However, it is unclear exactly
which operations he participated in, and the Federal Court specifically found
that no witnesses could link Mr. Katriuk to atrocities committed against the
civilian population. While his service was not involuntary in the way that Mr.
Odynsky’s service was, had he left his battalion he might have been found to
have deserted and might have faced the firing squad. Finally, the Federal Court
did not identify the organizations in which Mr. Katriuk served as having a
“limited brutal purpose.” (See paragraphs 38-41, above.)
[90]
Another
way of measuring the Governor in Council’s decisions against the deferential
standard of review of reasonableness is to review the submissions of the
parties that were contained in the reports the Minister sent to the Governor in
Council. These submissions reveal sharp divisions on the weight to be given to
certain facts, how the policy should be applied to those facts, and how the
Governor in Council should exercise its discretion. These are cases where, in
the words of the Supreme Court in Dunsmuir, supra at paragraph
47, the questions for decision “do not lend themselves to one specific,
particular result” but instead “give rise to a number of possible, reasonable
conclusions.”
[91]
Under the
deferential standard of review of reasonableness, it is not our job to reweigh
the evidence that the Governor in Council weighed, grapple with interpretative
issues concerning the war crimes policy, and then replace the Governor in
Council’s discretionary, fact-based conclusions with our own conclusions. On
the available facts, law and policy, the Governor in Council’s decisions not to
revoke the citizenships of Mr. Odynsky and Mr. Katriuk under subsection 10(1)
of the Act are defensible.
(4) Should the Governor
in Council have received the submissions that appellant had made to the
Minister?
[92]
The
appellant submits that, as a matter of procedural fairness, the Governor in
Council should have received the submissions that the appellant had made to the
Minister. It complains that submissions of the Ukrainian Canadian Congress to
the Minister were included in the Minister’s reports and made their way to the
Governor in Council. But the appellant’s submissions were not included.
[93]
Owing to
the importance of the decisions to Messrs. Odynsky and Katriuk, the Minister
appropriately invited them to make submissions. Counsel for Mr. Odynsky
included submissions of the Ukrainian Canadian Congress amongst his submissions
to Minister. The Minister appropriately included all of the submissions of Messrs.
Odynsky and Katriuk in the reports in order to assist the Governor in Council
in making its decisions. The Minister chose not to include any of the
appellant’s submissions in the reports. As a result, the submissions of the Ukrainian
Canadian Congress ended up before the Governor in Council, but those of the
appellant did not.
[94]
However, a
reading of the Minister’s reports, especially the Minister’s covering
memorandum, shows that the Minister robustly put to the Governor in Council
many of the viewpoints and perspectives that the appellant had advanced to the
Minister. Further, in response to a question during oral argument in this
Court, counsel for the applicant confirmed that the appellant’s real concern about
procedural fairness was that the Governor in Council did not have the
appellant’s legal submissions concerning how subsection 10(1) should be
interpreted. To the extent that that worked any prejudice, that prejudice has
now been cured: both the applications judge and this Court have carefully considered
the appellant’s legal submissions and have passed judgment upon them.
[95]
In any
event, given the nature of the issues before the Governor in Council,
procedural fairness obligations in favour of the appellant did not arise on
these facts under this legislative regime. At common law, the Governor in
Council is not subject to procedural fairness obligations where it is deciding
matters with significant policy content that affect a wide range of
constituencies: Knight v. Indian Head School Division No. 19, [1990] 1
S.C.R. 653 at page 670, 106 N.R. 17; Martineau v. Matsqui Institution,
[1980] 1 S.C.R. 602, 30 N.R. 119; Canada (M.N.R.) v. Coopers & Lybrand
Ltd., [1979] 1 S.C.R. 495 at page 504, 24 N.R. 163; Inuit Tapirisat of
Canada v. Canada (A.G.), [1980] 2 S.C.R. 735, 33 N.R. 304. On the other
hand, there may be some scope for the imposition of procedural fairness
obligations where the rights and privileges of an individual or a relatively
discrete group of individuals are being directly affected on the basis of
provisions that impose objective standards and criteria: David Mullan, Administrative
Law (Toronto: Irwin Law, 2001) at page 165 and see also Cardinal v. Kent
Institution, [1985] 2 S.C.R. 643 at page 653, 16 Admin. L.R. 233. As mentioned in paragraphs 57-58 above in the
context of the appellant’s submissions on direct standing, the Governor in
Council’s decisions did not directly affect the rights and privileges of the
appellant. Also as mentioned in paragraphs 63-79 above, subsection 10(1) of the
Act does not impose objective standards and criteria on the Governor in
Council. Rather, it empowers the Governor in Council to exercise a broad
discretion that, as we have seen, is guided by a war crimes policy established
by the Government of Canada.
D. Disposition
[96]
The
respondents, the Attorney General of Canada and Vladimir Katriuk, do not seek
their costs. The respondent, Wasyl Odynsky, seeks his costs in his appeal. In
my view, costs should follow the outcome of that appeal.
[97]
Therefore,
I would dismiss the appeals, with costs to the respondent, Wasyl Odynsky, in
file A-365-09.
"David Stratas"
“I
agree
K.
Sharlow”
“I
agree
Johanne
Trudel”
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