Canada (Minister of Citizenship and Immigration) v. Tobiass

Canada (Minister of Citizenship and Immigration) v. Tobiass
Collection
Supreme Court Judgments
Date
1997-09-25
Report
[1997] 3 SCR 391
Case number
25811
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Civil procedure
Courts
Notes
SCC Case Information: 25811
Decision Content
Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391
Erichs Tobiass Appellant
v.
The Minister of Citizenship and Immigration Respondent
and between
Johann Dueck Appellant
v.
The Minister of Citizenship and Immigration Respondent
and between
Helmut Oberlander Appellant
v.
The Minister of Citizenship and Immigration Respondent
and
The Canadian Jewish Congress Intervener
Indexed as: Canada (Minister of Citizenship and Immigration) v. Tobiass
File No.: 25811.
1997: June 26; 1997: September 25.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Courts ‑‑ Jurisdiction ‑‑ Appeals ‑‑ Federal Court of Appeal ‑‑ Federal Court Trial Division staying citizenship revocation proceedings ‑‑ Whether stay of proceedings a decision made under s. 18(1) of Citizenship Act ‑‑ Whether decision to stay proceedings can be appealed to Federal Court of Appeal ‑‑ Citizenship Act, R.S.C., 1985, c. C‑29, s. 18(1) , (3) ‑‑ Federal Court Act, R.S.C., 1985, c. F‑7, s. 27(1) .
Courts ‑‑ Judges ‑‑ Judicial independence ‑‑ Government official meeting with Chief Justice of Federal Court to express concern about slow progress of citizenship revocation proceedings ‑‑ Whether meeting between government official and chief justice interfered with judicial independence ‑‑ If so, whether stay of proceedings appropriate remedy.
Civil procedure ‑‑ Remedies ‑‑ Stay of proceedings ‑‑ Meeting between government official and chief justice causing damage to appearance of judicial independence ‑‑ Whether stay of proceedings appropriate remedy.
In January 1995 the appellants received notices informing them that the respondent Minister intended to seek revocation of their Canadian citizenship on the ground that they had obtained it by failing to divulge to Canadian officials details of their involvement in atrocities committed during the Second World War. At the appellants’ request, the cases were referred to the Federal Court ‑‑ Trial Division. Numerous procedural disputes then arose. On December 12, 1995 counsel for one of the appellants argued for the whole day on the preliminary motions before the Associate Chief Justice. In January 1996 the court advised the parties that May 15 and 16 had been set aside for the completion of the argument. Counsel for the respondent wrote a letter to the court administrator, a copy of which he sent to counsel for the appellants, complaining in strong terms about the slow progress of the cases. Following a teleconference with the parties, the Associate Chief Justice confirmed that oral argument on the preliminary issues would take place on May 15 and 16, 1996. On March 1, T, the Assistant Deputy Attorney General in charge of civil litigation at the federal Department of Justice, met with the Chief Justice of the Federal Court. The two men discussed the scheduling of the appellants’ cases and later that day exchanged letters, neither of which was copied to any of the counsel for the appellants. In his letter to the Chief Justice, T referred to the fact that the Attorney General was being asked to consider taking a reference to the Supreme Court of Canada to determine some preliminary points of law primarily because the Trial Division was unable or unwilling to proceed with the cases expeditiously. In his reply, the Chief Justice stated that he had discussed T’s concerns with the Associate Chief Justice, and that both were prepared to take all reasonable steps to avoid such a reference. He added that the Associate Chief Justice said he had not fully appreciated “the urgency of dealing with these matters as expeditiously as the Government would like” until he had read T’s letter. However, now that he was aware of the Government’s concerns he would devote one week from May 15 to deal with the cases not only with respect to the preliminary points but also with respect to the merits. The respondent provided copies of these letters to the appellants. Counsel for the appellants advised the court that they would move for a stay of proceedings on the ground that T and the Chief Justice had interfered with the independence of the Associate Chief Justice. The Associate Chief Justice then recused himself. He directed that the appellants’ cases should go forward under a new judge. The appellants’ application for a stay of proceedings was granted. The Federal Court of Appeal, having decided that it had jurisdiction to consider the appeal, set aside the stay.
Held: The appeal should be dismissed.
The Federal Court of Appeal had jurisdiction to hear the Crown’s appeal in this case. The stay of proceedings ordered was not a decision made “under” s. 18(1) of the Citizenship Act . Section 18(1) refers to a very particular kind of decision: a decision as to whether a person “has obtained, retained, renounced or resumed citizenship” by false pretences. Whether s. 18(1) is interpreted narrowly as encompassing only the ultimate decision as to whether citizenship was obtained by false pretences, or more broadly to include the interlocutory decisions made in the context of a s. 18(1) hearing which are related to this determination, it is apparent that it does not encompass an order granting or denying a stay of proceedings. Section 18(3) of the Citizenship Act , which provides that no appeal lies from a decision of the Trial Division made under s. 18(1) , thus does not apply. A decision allowing or denying a motion for a stay of proceedings is a decision made under s. 50 of the Federal Court Act and may be appealed according to the rules set out in s. 27 of that Act.
The appearance of judicial independence suffered significantly as a result of the meeting between T and the Chief Justice. The test for determining whether the appearance of judicial independence has been maintained is whether a reasonable observer would perceive that the court was able to conduct its business free from the interference of the government and of other judges. As a general rule of conduct, counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case. The meeting between T and the Chief Justice, at which counsel for the appellants were not present, violated this rule and was clearly inappropriate, despite the fact that the occasion for the meeting was a highly legitimate concern about the exceedingly slow progress of the cases. Again as a general rule, a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views. It was therefore clearly wrong, and seriously so, for the Chief Justice to speak to the Associate Chief Justice at the instance of T. While a chief justice is responsible for the expeditious progress of cases through his or her court and may under certain circumstances be obligated to take steps to correct tardiness, the actions of the Chief Justice here were in the nature of a response to a party rather than to a problem. Similarly, the Associate Chief Justice acted inappropriately by responding as he did to the Chief Justice’s intervention without the participation of counsel for the appellants. A reasonable observer apprised of the workings of the Federal Court and of all the circumstances would perceive that the Chief Justice and the Associate Chief Justice were improperly and unduly influenced by a senior officer of the Department of Justice. However, there is no persuasive evidence of bad faith on the part of any of those involved, nor is there any solid evidence that the independence of the judges in question was actually compromised.
An appellate court may not lightly interfere with a trial judge’s decision to grant or not to grant a stay of proceedings, which is a discretionary remedy. While a stay is usually sought to remedy some unfairness to the individual that has resulted from state misconduct, there is also a “residual category” of cases in which a stay may be warranted. This residual category comprises cases in which a prosecution is conducted in such an unfair or vexatious manner that it contravenes notions of justice and thus undermines the integrity of the judicial process. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. It must also be shown that no remedy other than a stay is reasonably capable of removing this misconduct. As well, it may be necessary in some cases to balance the interests that would be served by granting a stay of proceedings against the interest that society has in having a final decision on the merits. This balancing process would not be appropriate in the case of an ongoing affront to judicial independence or of a particularly egregious interference, either of which would outweigh any interest society might have in continuing the proceedings. Neither of these circumstances is present here.
A stay of proceedings is not the appropriate remedy in these cases. First, there is no likelihood that the carrying forward of the cases will manifest, perpetuate or aggravate any abuse. Second, the lesser remedy of ordering the cases to go forward under the supervision of a different judge of the Trial Division without any direction or intervention from the Chief Justice or the Associate Chief Justice will suffice. Third, Canada’s interest in not giving shelter to those who concealed their wartime participation in acts of atrocities outweighs any foreseeable harm that might be done to the appellants or to the integrity of the system by proceeding with the cases. The appropriate remedy here is to have the cases against the appellants go forward under the supervision of a judge of the Trial Division who has had nothing to do with the affairs that form the subject matter of this appeal. The judge appointed will ignore all directions previously given by the Associate Chief Justice or the Chief Justice in these cases. The Chief Justice and Associate Chief Justice should not have anything further to do with these cases.
Cases Cited
Referred to: Roberts v. Canada, [1989] 1 S.C.R. 322; ITO‑-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Hinse, [1995] 4 S.C.R. 597; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Beauregard v. Canada, [1986] 2 S.C.R. 56; Elsom v. Elsom, [1989] 1 S.C.R. 1367; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Conway, [1989] 1 S.C.R. 1659; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; R. v. Vermette, [1988] 1 S.C.R. 985; R. v. Hubbert (1975), 29 C.C.C. (2d) 279; R. v. Latimer, [1997] 1 S.C.R. 217; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; Attorney‑General v. Times Newspapers Ltd., [1973] 1 Q.B. 710.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(2) .
Citizenship Act, R.S.C., 1985, c. C‑29, ss. 2 “Court”, 10, 18(1), (3).
Federal Court Act, R.S.C., 1985, c. F‑7, ss. 6(1) , (3) , 27(1) [am. 1990, c. 8, s. 7], 46, 50(1).
Federal Court Rules, C.R.C., c. 663, rr. 5, 450‑455, 461, 477, 900‑920, 1714‑1715.
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40 .
Authors Cited
Canada. Parliament. House of Commons. Beauchesne’s Rules & Forms of the House of Commons of Canada, with Annotations, Comments and Precedents, 6th ed. By Alistair Fraser, W. F. Dawson and John A. Holtby. Toronto: Carswell, 1989.
Wilson, J. O. A Book for Judges. Ottawa: Canadian Judicial Council, 1980.
APPEAL from a judgment of the Federal Court of Appeal, [1997] 1 F.C. 828, 142 D.L.R. (4th) 270, 208 N.R. 21, [1997] F.C.J. No. 2 (QL), setting aside a stay of proceedings entered by the Federal Court ‑‑ Trial Division, [1996] 2 F.C. 729, 116 F.T.R. 69, 41 Admin. L.R. (2d) 272, [1996] F.C.J. No. 865 (QL). Appeal dismissed.
Gesta J. Abols, for the appellant Tobiass.
Donald B. Bayne, for the appellant Dueck.
Michael Code, for the appellant Oberlander.
W. Ian C. Binnie, Q.C., for the respondent.
Ed Morgan, for the intervener.
The following is the judgment delivered by
//The Court//
1 The Court -- This appeal raises three principal questions. The first and threshold question is whether this Court has jurisdiction to hear an appeal from a decision of a judge of the Federal Court ‑‑ Trial Division to stay a citizenship revocation proceeding. The second question is whether certain events constituted an actual or apparent affront to judicial independence. The third question is whether, if there was any affront to judicial independence, a stay was, under the circumstances, the appropriate remedy.
I. Facts
2 The facts of this appeal present some difficulties. Much of the relevant evidence was known to Cullen J., who considered the appellants’ application at first instance. But other items of evidence emerged only recently, following an order of this Court dated May 5, 1997. The additional evidence was not considered at trial and so has not given rise to any findings of fact. It is accordingly for this Court to determine the weight that should be assigned to it.
A. The Evidence That Was Available to the Trial Division
3 The following was known to the Trial Division and to the Federal Court of Appeal. Both courts based their decisions entirely upon it.
4 On January 27, 1995, the Registrar of Canadian Citizenship sent Notices of Revocation to the appellants, Helmut Oberlander, Johann Dueck and Erichs Tobiass. The purpose of these notices was to inform the appellants that the Minister of Citizenship and Immigration (“the Minister”) intended to seek revocation of their Canadian citizenship on the ground that they had obtained it by failing to divulge to Canadian officials details of their involvement in atrocities committed during the Second World War. Mr. Oberlander, it was said, had concealed his “membership in the German Sicherheitspolizei und SD and Einsatzkommando 10A during the Second World War and [his] participation in the executions of civilians during that period of time”; Mr. Dueck his “membership in the Selidovka district (ralon) police in German occupied Ukraine during the period 1941 to 1943, and [his] participation in the executions of civilians and prisoners‑of‑war during that time”; and Mr. Tobiass his “membership in the lettische Sicherheitshilfspolizei (commonly known as the Arajs Kommando) subordinate to the German Sicherheitspolizei und SD during the period 1941 to 1943 in German occupied Latvia and [his] participation in the executions of civilians during that time and [his] membership in the Waffen SS during the period 1943 to 1945”.
5 As they were entitled to do under s. 18(1) (a) of the Citizenship Act, R.S.C., 1985, c. C-29 , the appellants asked the Minister to refer their cases to the Federal Court ‑‑ Trial Division. By May 1, 1995, the Minister had referred all three cases to the court.
6 There then followed many procedural disputes. In May of 1995, the respondent sought directions from the court about the procedure to be followed and the appellants sought disclosure of the respondent’s case. On June 30, 1995, the respondent’s motions for directions came on for hearing before Jerome A.C.J. During the initial hearing, counsel for the appellants raised many preliminary issues. The Associate Chief Justice ordered the three cases joined for purposes of resolving the preliminary issues and he set a timetable for the filing of arguments in relation to them.
7 Throughout the summer of 1995, the appellants sought disclosure of documents that they judged to be relevant to their preliminary motions. In addition, they pressed the respondent to produce the details of the case against them. On August 25, 1995, Mr. Christopher Amerasinghe, who was counsel for the respondent at the time, informed counsel for the appellant Dueck that many of the relevant documents were in the process of being translated and so were unavailable.
8 On October 4, 1995, Jerome A.C.J. telephoned the parties to schedule the argument of the preliminary motions. Mr. Amerasinghe indicated that he intended to claim that certain documents sought by the appellants were privileged. The parties agreed that the questions of disclosure and privilege had to be settled before the cases could proceed. The Associate Chief Justice chose December 12, 1995 as the date upon which he would hear argument concerning those questions. Mr. Amerasinghe agreed that December 12 was “a reasonable date as scheduling goes in courts in Toronto”.
9 In November, the respondent released some documents to the appellants but withheld others. On December 12, 1995, counsel for the appellant Dueck argued for the whole day. At the end of the day, the matter was set over for continuation.
10 On January 10, 1996, the Federal Court ‑‑ Trial Division advised the parties that May 15 and 16, 1996 had been set aside for the completion of the argument that had begun on December 12, 1995. Less than a week later, Mr. Amerasinghe wrote to the Court Administrator to protest the May dates. In the letter, a copy of which he sent to counsel for the appellants, Mr. Amerasinghe pointed out that many of the proposed witnesses were of “advanced age” and “frail in health”. He complained in strong terms about the slow progress of the cases.
11 On February 19, 1996, the parties and the Associate Chief Justice participated in a teleconference. Mr. Amerasinghe repeated the points he had made earlier in his letter to the Court Administrator and offered to make submissions in writing in order to expedite the resolution of the preliminary issues. The Associate Chief Justice decided that he wished to have oral submissions. He confirmed that the oral argument would take place on May 15 and 16, 1996.
12 The events that form the heart of this appeal took place on March 1, 1996. On that day, Mr. Ted Thompson, who was the Assistant Deputy Attorney General in charge of civil litigation at the federal Department of Justice, met with Isaac C.J. of the Federal Court. The two men discussed the scheduling of the appellants’ cases and later that day exchanged letters, neither of which was copied to any of the counsel for the appellants. The letters read as follows:
March 1, 1996 HAND DELIVERED
The Honourable Chief Justice J. A. Isaac
Federal Court of Canada
Supreme Court of Canada Building
Ottawa, Ontario
K1A 0H9
Dear Chief Justice Isaac:
Re: Erichs Tobiass, T‑569‑95, Helmut Oberlander, T‑866‑95 and Johann
Dueck, T‑938‑95
Further to our meeting of this morning in which I advised you that the Attorney General of Canada is being asked to consider taking a Reference to the Supreme Court of Canada to determine some preliminary points of law primarily because the Federal Court Trial Division is unable or unwilling to proceed with the subject cases expeditiously.
Notices of Intention to revoke the citizenship of the above‑named individuals were sent out in January of 1995. They were persons who had been investigated in connection with allegations of war crimes and crimes against humanity during the second world war. Over the course of the next three months the cases were referred to the Federal Court. After complying with the requirements of Rule 920, Motions were brought requesting directions from the Court regarding discovery of evidence and taking evidence on commission. The Motions were filed April 13th (Tobiass), May 11th (Oberlander) and May 18th (Dueck), 1995 respectively. These Motions were necessary as there are no procedural rules governing these proceedings. We suggested the procedure followed in the Luitjens case be followed. Our Motion was originally set down for argument on June 30, 1995. Associate Chief Justice Jerome had become seized of the three cases and determined to hear all preliminary motions regarding them. On June 30th, counsel for Dueck argued that the three cases should be joined and also indicated that he wished to bring a Motion to stay the proceedings for abuse of process. Jerome, A.C.J. joined the three cases and granted adjournments over the objections of our counsel. September 15, 1995 was set as the date for the filing of facta and in a tele‑conference call on October 4, 1995 he set December 12, 1995 as the date on which argument was to be heard.
On December 12th, counsel for Dueck was permitted to argue all day and it was necessary to set the matter over for continuation. Jerome, A.C.J. indicated that the continuing date would be in February of 1996 despite our request for an earlier date and having regard to the fact that counsel for Dueck was available in early January. The Court declined to fix a date for continuation while all parties were present. When our counsel called the Court in January of 1996 requesting a date for continuation, he was advised several days later that argument had been set down for May 15th and 16th. We wrote the Court expressing concern about the long day [sic] and the urgency of proceeding with this matter. We suggested concluding the argument by written submissions. Counsel for Mr. Dueck objected and Jerome, A.C.J. indicated that even with written submissions he would want oral argument and on February 18th via tele‑conference with all parties he ordered that the dates of May 15 and 16 stand.
There are likely to be approximately 12 similar cases brought to the Federal Court with as many as 6 persons being given notice during the course of this year.
We are very concerned if these cases are not dealt with expeditiously they will never be heard on their merits. A crucial witness on the Tobiass case has cancer and may not be able to testify. In the Dueck case one key witness has died, one is in hospital and two others are so ill that they are unable to travel. Our counsel has estimated that at the current pace of proceeding and considering appeals in respect to interlocutory matters it will be years before these matters can be heard on their merits.
As you know, there is great public interest in seeing these cases disposed of on their merits and the potential for embarrassment is very high should it be seen that the Justice system is unable to respond to these urgent cases in a timely way.
I would appreciate any assistance you can offer.
Yours very truly,
J. E. Thompson
Assistant Deputy Attorney General
Civil Litigation
[Phone numbers]
By Hand
Mr. J. E. (Ted) Thompson, Q.C.
Assistant Deputy Attorney General
Civil Litigation Section
Department of Justice
Ottawa K1A 0H8
Dear Mr. Thompson:
Re: Erichs Tobiass T‑569‑95, Helmut Oberlander T-866-95 and
Johann Dueck T-938‑95
I refer to our discussions this morning and to your subsequent letter concerning these matters.
I have discussed your concerns with the Associate Chief Justice and, like me, he is prepared to take all reasonable steps possible to avoid a Reference to the Supreme Court of Canada on these matters.
The Associate Chief Justice has informed me that there are now before the Court five citizenship revocation cases ‑‑ the three mentioned in your letter which are being dealt with by Mr. Amerasinghe and, two earlier ones: one is being dealt with by Ms. Charlotte Bell (Khalil) and the other by Mr. Amerasinghe (Nemsila). The Associate Chief Justice has heard all of the evidence and argument in Nemsila but he had been asked by counsel for Nemsila to defer judgment in that case until Khalil has been concluded. Argument has commenced in that latter case and has been adjourned to 29 April for continuation.
In light of the concerns expressed in your letter the Associate Chief Justice will meet with Ms. Bell and, Ms. Jackman who appears for the Respondent, early next week to fix an early date for final argument. If an early date cannot be fixed he will give judgment in Nemsila and then deal with Khalil at the earliest possible date.
As regards the three cases about which you wrote, the Associate Chief Justice says firstly, that he did not fully appreciate until he read your letter, the urgency of dealing with these matters as expeditiously as the Government would like. However, now that he is aware he will devote one week from 15 May to deal with these cases not only with respect to the preliminary points but also with respect to the merits. Finally, he has authorized me to say that additional cases of this class coming into the Court will be given the highest priority in light of the concerns expressed in your letter.
Yours truly,
Julius A. Isaac
c.c.‑‑ The Hon. James A. Jerome
Associate Chief Justice
13 On March 7, 1996, the respondent provided copies of these letters to the appellants. In the cover letter, Mr. Amerasinghe explained that Mr. Thompson had approached the Chief Justice at the beginning of March to discuss the conduct of citizenship revocation cases generally and had, in the course of the meeting, happened to mention the appellants’ cases.
14 On April 2, 1996, counsel for the appellants Dueck and Oberlander requested disclosure of all documents that related directly or indirectly to the meeting that took place on March 1, 1996. Mr. Amerasinghe answered the next day that “there is no other correspondence between Mr. Thompson and the Chief Justice relating to this matter”. No disclosure was made of any documents besides the letters themselves.
15 On April 10, 1996, the Court Administrator informed counsel that the Associate Chief Justice would hear argument concerning preliminary motions on May 15 and 16, 1996, and if necessary during the following week. The Associate Chief Justice also sent word that he intended to be done with the cases by July of 1996.
16 On April 23, 1996, counsel for the appellants advised the court that they would move for a stay of proceedings on the ground that Mr. Thompson and Isaac C.J. had interfered with the independence of Jerome A.C.J. On April 30, counsel for the appellants Dueck and Oberlander indicated that they would be content to have the Associate Chief Justice remain in charge of the cases. Counsel for the appellant Tobiass had nothing to say on the subject, though he had indicated earlier that he would not object to having the Associate Chief Justice remain to settle the preliminary motions.
17 On May 6, the Associate Chief Justice recused himself. He directed that the appellants’ cases should go forward under a new judge on May 15, 1996 and indicated that the new judge’s list would be cleared to permit him to deal expeditiously with any remaining questions that the cases might pose.
B. Further Evidence
18 On May 5, 1997, this Court ordered the respondent to produce “[t]he internal Department of Justice documents concerning the fact[s] referred to” in a report prepared for the Government by former Chief Justice of the Ontario Court of Appeal, the Honourable Charles Dubin. On May 22, the Court ordered the respondent to comply fully with the order of May 5. In response to the two orders, the respondent disclosed many internal documents.
19 The following emerges from these documents.
20 Counsel for the respondent objected strongly to the Associate Chief Justice’s management of the appellants’ cases. It appears that Mr. Amerasinghe had concluded as early as December 14, 1995 that the Associate Chief Justice was a “problematic” judge.
21 On February 27, 1996, the Department of Justice’s Litigation Committee decided that “our only option in the circumstances [i.e. in response to delay in the Federal Court ‑‑ Trial Division] appears to be a reference to the Supreme Court of Canada of the preliminary questions that have been raised”. Mr. Thompson seems not to have been present during the discussion. A reference in a subsequent memorandum reveals that “the Litigation Committee at its meeting on February 27, 1996, specifically recommended that no one should approach the Chief Justice to apprise him of the government’s intention to refer certain questions to the Supreme Court”.
22 On March 1, 1996, Mr. Amerasinghe made the following note of a telephone conversation between himself and Mr. Thompson:
J.E.T. [J. Edward (Ted) Thompson] Called and informed me he had met with Isaac who told him that he would get Jerome to recuse himself from the cases and would put an efficient judge to deal quickly with the cases. Isaac had said he would ensure any appeals would be dealt with speedily.
According to Mr. Amerasinghe, later that same day the Chief Justice dined at Mr. Thompson’s home.
23 More than two months after the meeting between Mr. Thompson and the Chief Justice took place, Mr. Amerasinghe recorded his suspicion that Mr. Thompson’s real intention in approaching the Chief Justice had been to protect a friend from the embarrassment of a reference to the Supreme Court. Indeed, Mr. Amerasinghe indicated that Mr. Thompson and the Chief Justice were friends and frequent interlocutors. According to Mr. Amerasinghe’s report, the Chief Justice invited Mr. Thompson to inform him of perceived problems with the administration of the Federal Court, and Mr. Thompson obliged.
II. Judgments in Appeal
A. Trial Division, [1996] 2 F.C. 729
24 On the strength of the letters exchanged by Mr. Thompson and the Chief Justice on March 1, 1996, Cullen J. concluded that irreparable harm had been done to the appearance of judicial impartiality. He entered a stay of proceedings.
25 Cullen J. thought that a reasonable observer presented with the letters of March 1, 1996 might conclude that, as a result of the meeting between Mr. Thompson and the Chief Justice, pressure was brought to bear on the Associate Chief Justice to hurry the appellants’ cases along, quite possibly to the appellants’ detriment. In this way damage was done to the appearance of judicial independence.
26 Because it was the Chief Justice who intervened, and the Chief Justice enjoys some authority over the entire court, Cullen J. thought that a reasonable observer would worry that the independence of all the judges and not only of the Associate Chief Justice had been compromised.
27 Having concluded that the appearance of judicial independence had suffered, Cullen J. considered whether a stay of proceedings was the appropriate remedy. He concluded that no remedy other than a stay of proceedings would cure the wrong done to the appearance of judicial independence. A less radical remedy would only “weaken judicial independence and leave the impression that transgressions of the Court’s integrity may be reprimanded but, ultimately, will be forgotten” (p. 748).
B. Federal Court of Appeal
28 The respondent purported to appeal Cullen J.’s decision.
(i) Motion to Quash for Want of Jurisdiction
29 The appellants moved to quash the appeal for want of jurisdiction. They argued that s. 18(3) of the Citizenship Act placed Cullen J.’s decision to stay the proceedings beyond appeal. The court dismissed the motion over Pratte J.A.’s dissent: (1996), 208 N.R. 49.
(a) Marceau J.A.
30 Marceau J.A. held that Cullen J.’s decision was capable of appeal. He concluded that s. 18(3) bars appeal only of decisions that a person has or has not obtained citizenship by impermissible means. He agreed (at p. 53) that the bar extends also to “all interlocutory rulings and decisions made with a view to ultimately coming to” a decision on the merits. However, he thought that the decision to enter a stay of proceedings did not come within the bar, because such a decision is neither a decision on the merits nor a decision made with a view to coming to a decision on the merits.
(b) Stone J.A.
31 Stone J.A. read s. 18(3) of the Citizenship Act as barring appeal only of decisions made under s. 18(1) . Section 18(3) , he argued, does not bar appeal of decisions made under other provisions of the Citizenship Act or under other Acts of Parliament. Because Cullen J. entered the stay using a power given by s. 50(1) of the Federal Court Act, R.S.C., 1985, c. F-7 , s. 18(3) of the Citizenship Act did not bar an appeal of it.
(c) Pratte J.A. (dissenting)
32 Pratte J.A. interpreted s. 18(3) as barring appeal not only of a final decision on the merits of a citizenship reference but also of “the myriad of decisions that the Trial Division may make in the course of the reference including . . . a decision granting or refusing a stay of the reference proceedings” (p. 52). He judged that any other reading of the provision would lead to absurdities.
(ii) Stay of Proceedings
33 Having decided that it had jurisdiction to consider the appeal, the court unanimously set aside the stay of proceedings: [1997] 1 F.C. 828. Each judge offered his own reasons for doing so.
(a) Marceau J.A.
34 Marceau J.A. concluded that the Associate Chief Justice had retained his judicial independence throughout the period in question. He noted that it is part of the role of a chief justice to manage his or her court. A chief justice must ensure that the court provides “timely justice”. Therefore, when a chief justice learns, by whatever means, that the pace of a proceeding is abnormally slow, he or she has a positive duty to investigate, though care must be taken not to interfere with the adjudicative functions of the presiding judge. In the light of this understanding of the role of a chief justice, Marceau J.A. could find no evidence to support the conclusion that the Chief Justice had done anything improper in approaching the Associate Chief Justice to discuss the pace of the appellants’ case.
35 Marceau J.A. likewise concluded that the appearance of judicial independence had not suffered as a result of the Chief Justice’s intervention with the Associate Chief Justice.
36 Although in Marceau J.A.’s view there had been no affront to judicial independence, he nevertheless considered whether, if there had been an affront, a stay of proceedings would have been the appropriate remedy. He concluded that it would not have been.
37 The question, in Marceau J.A.’s mind, was whether going ahead with the proceedings would perpetuate the appearance of impropriety. The inquiry was forward‑looking. What happened in the past could not justify a stay unless its ill effects were likely to persist. Marceau J.A. concluded that if the proceedings were to go ahead under some other judge, the appearance of an affront to judicial independence would be dispelled. It was quite unreasonable to suppose, as Cullen J. did, that there entire bench of the Trial Division had been tainted.
38 Because he concluded that Cullen J. had exercised his discretion to grant a stay on the basis of a mistaken understanding of the governing principles, Marceau J.A. held that the stay should be set aside.
(b) Pratte J.A.
39 Pratte J.A. wrote only to add two observations to Marceau J.A.’s reasons. The first was that no reasonable person would ever conclude from the Chief Justice’s intervention in the appellants’ cases that the independence of every member of the Trial Division had been compromised. The second was that Cullen J. was wrong to conclude that there was nothing unusually slow about the pace of the proceedings. The pace of the proceedings before the Associate Chief Justice “had been so slow as to certainly give rise to a suspicion that justice was not rendered with reasonable diligence” (p. 835). Thus, when the Chief Justice learned of the situation, regardless of how the information came to him, he was “duty bound to intervene”.
(c) Stone J.A.
40 Although concurring with his colleagues, Stone J.A. took an approach slightly different from theirs. He agreed with them there was “nothing in the record to suggest that the motivation for the meeting with and the letter to the Chief Justice was other than to convey the concern of a party for perceived delay in the progress of the cases in view of the age and state of health of the respondents and of potential witnesses” (p. 867). However, he believed that the appearance of judicial independence had suffered as a result of the events of March 1, 1996.
41 Having found some apprehension of bias, Stone J.A. had to consider what the appropriate remedy might be. He was not persuaded that what he had before him amounted to one of the “clearest of cases”, in which a stay of proceedings was warranted. Although what transpired was improper, there was no evidence that either Mr. Thompson or the Chief Justice had acted in bad faith. Stone J.A. agreed with Marceau J.A. that the lesser remedy of a new proceeding before a new judge would sufficiently answer any affront that the appearance of judicial independence had suffered.
III. Issues
42 This appeal presents three issues. The first is whether an appeal lies from a decision of a judge of the Trial Division to grant a stay of proceedings in a citizenship revocation proceeding commenced under s. 18(1) of the Citizenship Act . The second is whether judicial independence, or the appearance of it, suffered as a result of the meeting between Mr. Thompson and Isaac C.J. The third is whether, if any damage was done to the appearance of judicial independence, the trial judge properly exercised his discretion to enter a stay of proceedings.
IV. Analysis
43 We conclude that an appeal lies from a decision of the Trial Division to grant a stay of proceedings in a case such as this one. We further conclude that the appearance, but not the fact, of judicial independence suffered as a result of the meeting between Mr. Thompson and the Chief Justice, but that a stay of proceedings is not the appropriate remedy.
A. Jurisdiction
44 The appellants contend that, in light of s. 18(3) of the Citizenship Act , Cullen J.’s order was final and could not be appealed either to the Federal Court of Appeal or to this Court. To properly assess the merits of this submission, the interplay between s. 18 of the Citizenship Act and ss. 27 and 50 of the Federal Court Act must be considered.
45 Section 18 of the Citizenship Act provides that:
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. [Emphasis added.]
Section 2 of the same Act makes it clear that the “Court” referred to in s. 18 is the Federal Court ‑- Trial Division.
46 Sections 27 and 50 of the Federal Court Act provide that:
27. (1) An appeal lies to the Federal Court of Appeal from any
(a) final judgment,
(b) judgment on a question of law determined before trial,
(c) interlocutory judgment, or
(d) determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada,
of the Trial Division.
50. (1) The Court may,