[1997] 1 F.C. 828
A-559-96
(T-569-95)
The Minister of Citizenship and Immigration (Appellant) (Applicant)
v.
Erichs Tobiass (Respondent) (Respondent)
A-560-96
(T-938-95)
The Minister of Citizenship and Immigration (Appellant) (Applicant)
v.
Johann Dueck (Respondent) (Respondent)
A-561-96
(T-866-95)
The Minister of Citizenship and Immigration (Appellant) (Applicant)
v.
Helmut Oberlander (Respondent) (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration) v. Tobiass (C.A.)
Court of Appeal, Pratte, Marceau and Stone JJ.A.— Toronto, December 9, 10, 11, 12 and 13, 1996; Ottawa, January 14, 1997.
Judges and Courts — Judicial independence — Secret meeting between Assistant Deputy Attorney General and Chief Justice of Federal Court to discuss slow pace of citizenship revocation references before A.C.J. — Latter recusing from further involvement in cases — Motions Judge finding breach of judicial independence, abuse of process — Ordering stay of proceedings — Case involving individual, not institutional independence — Role of C.J. to ensure “timely justice” — Intervention of C.J. not interference with judicial independence of A.C.J. — A.D.A.G. not using C.J. as mere instrument — Delay in progress of cases primary focus of meeting, correspondence with C.J. — No judicial interference, no harm to respondents.
Practice — Stay of proceedings — Motions Judge ordering stay of citizenship revocation proceedings following secret meeting between Chief Justice of Federal Court and Assistant Deputy Attorney General — Court can order stay of proceedings in interest of justice under Federal Court Act, s. 50(1)(b) — Least intrusive remedy capable of curing breach to be imposed — Present cases not “clearest of cases” for granting stay — Less drastic remedy available — Motions for stay ill-founded.
Citizenship and Immigration — Status in Canada — Citizens — References filed by Minister under Citizenship Act, s. 18 seeking declarations respondents admitted to Canada for permanent residence by false representations, fraud or by concealing material circumstances — Assistant Deputy Attorney General privately meeting with Chief Justice of Federal Court to discuss slow pace of proceedings — Judicial independence not breached — Stay of proceedings inappropriate remedy.
These were appeals from a Trial Division decision ordering a stay of citizenship revocation proceedings involving three persons suspected of having committed war crimes during the second world war. These proceedings relate to references filed by the appellant under section 18 of the Citizenship Act, seeking declarations that the three respondents were admitted to Canada for permanent residence “by false representations or fraud or by knowingly concealing material circumstances” within the meaning of subsection 10(1) of that Act. Notices of intention to revoke the citizenship of the respondents were sent out in January 1995 and various interlocutory motions were still being argued in May 1996. Although Crown counsel expressed to the presiding judge, the Associate Chief Justice, concern over the long delay and the urgency of getting on with the matter, the latter nevertheless continued to set dates in the usual manner. On March 1, 1996, an assistant to the Deputy Attorney General met with the Chief Justice of the Federal Court and expressed the concern of his Department with the slow pace in which the three references were being processed. The meeting was confirmed in an exchange of letters which were later disclosed to counsel and tendered in open court. In his letter to the Chief Justice, the Assistant Deputy Attorney General expressed his fear that aging Crown witnesses might die or become unable to testify and that the cases might never be heard on the merits. The Chief Justice then discussed these concerns with the Associate Chief Justice who promised to assign the highest priority to cases of this nature. Following that meeting, counsel for the respondents indicated their intention of bringing a motion to stay for alleged interference with judicial independence. Shortly after that, the Associate Chief Justice recused himself of further involvement in the cases. The motions for stay of proceedings were granted and an order was made staying all three cases. The Motions Judge ruled that the secret meeting and the subsequent intervention with the Associate Chief Justice was a serious breach of judicial independence and that this affront to judicial independence was the “clearest of cases”. Two issues were raised on appeal: 1) whether there was a breach of judicial independence and 2) whether the stay of proceedings was a proper remedy.
Held, the appeals should be allowed.
Per Marceau J.A.: 1) This case is not about the judicial independence of the Court itself, of the institution as a whole. Rather, the Court was dealing with the judicial independence required to ensure the impartiality of an individual member of the Court, the Associate Chief Justice, who had assumed responsibility for the “management” of the three references until they became ready for “trial”. The Assistant Deputy Attorney General was not addressing the presiding Judge himself using the Chief Justice as a mere conduit or intermediary. If there was an attempt to interfere with the independence of the judiciary, it came from the Chief Justice alone and was aimed at only one judge, the presiding Judge. Judicial independence was not breached when the Assistant Deputy Attorney General privately met with the Chief Justice and followed with a letter at the latter’s request. In trying to establish whether there was actually a breach of judicial independence, the Assistant Deputy Attorney General can only be seen as the source of the information which led the Chief Justice to intervene. The only evidence before the Trial Division was limited to the two above-mentioned letters and it could not be drawn from those letters that the executive, or its representative, has tried to impose its view on the presiding Judge, or that all participants, especially the Chief Justice and even the Associate Chief Justice, have acted in bad faith. Any special form of pressure or any particular cause for fear is also ruled out. For the exercise of judicial functions, all the members of the Court are equal and any attempt by a chief justice to use his position to influence the disposition of a case would be intolerable. On the other hand, the authority and responsibility for the management of the Court rest with the Chief Justice. The latter cannot disinterest himself from the pace of progress and the timeliness of disposition of the cases the Court has to deal with. He has a responsibility to ensure that the Court provides “timely justice”. If a matter appears to a chief justice to be moving abnormally slowly, his mandate not only authorizes but imposes a positive duty to investigate. In this case, it was nothing more than a simple intervention by a chief justice for the purpose of ascertaining the cause of the slow pace of proceedings before the Court. More than a year had elapsed since the filing of the references and the only positive step to advance significantly the proceedings had been to devote one day of argument on the first of three preliminary motions, following which the uncompleted hearing had been adjourned to five months later. There was no way for the Chief Justice to understand the reasons for this quite unusual delay without inquiring. His intervention did not constitute an interference with the judicial independence of the presiding Judge; it was not made in favour of one party to the detriment of the other and could not affect the impartiality of the presiding Judge.
2) It is only through the exercise of the power given to the Court by paragraph 50(1)(b) of the Federal Court Act that a stay of proceedings could be ordered. The effect of the stay herein was to preclude, absolutely and virtually in perpetuity, the pursuit of the references against the respondents. Such a final decision, which obviates any chance for an assessment of the charges on their merits, could not be viewed as being “in the interest of justice”. There was no misconduct but only a problem of possible perception on the part of the public that the intervention of the Chief Justice was improper and would impair the free judgment of the presiding Judge. It is the remedy required to cure that problem and no other that is demanded by the interest of justice. The least intrusive remedy capable of curing a breach has to be imposed. A less drastic remedy was available and already in place, a different judge now being in charge. The motions for stay of proceedings were ill-founded. There was no actual judicial interference but, at most, an apparent minimal impropriety by the Chief Justice. The respondents’ right to a fair trial would not be adversely affected and no harm was done to them.
Per Stone J.A.: 1) A tribunal should be perceived as independant, as well as impartial, and the test for independence should include that perception. Judicial independence lies at the very heart of a Canadian court’s ability to do justice and to command public confidence in the administration of justice. Personal independence includes independence from government and from the parties to the litigation. The problem herein was one of scheduling, and it was not an intrusion on personal independence for the Chief Justice to investigate the complaint of inordinate delay in order to learn whether there was any substance to it. 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. The Chief Justice, in conformity with his overseeing role, could be expected to reasonably investigate with the Associate Chief Justice the complaint of alleged delay in the pace of the litigation. He could not dictate the response of the Associate Chief Justice, and there is no evidence that he did. An informed person would conclude that the decision of the Associate Chief Justice, by which the hearing of all preliminary motions and the trials would be compressed into a relatively short time frame, would redound to the disadvantage of the individual respondents and was taken so as “to avoid” a reference to the Supreme Court.
2) The present cases could not properly be described as the “clearest of cases” for granting a stay of proceedings as a remedy for an abuse of process. There was no evidence that either the Assistant Deputy Attorney General or the Chief Justice acted out of improper motives or in bad faith. Although the meeting and correspondence between the Assistant Deputy Attorney General and the Chief Justice occurred ex parte and some statements found in the correspondence did raise a perception of interference with personal independence, the situation was not so wrong that it violated the conscience of the community, such that it would genuinely be unfair and indecent to proceed. Any perception that the personal independence of the Associate Chief Justice was compromised should not be extended to that of every other member of the Trial Division.
Per Pratte J.A.: The first error in the Motions Judge’s decision was his finding that, as a result of the Chief Justice’s intervention, there was a reasonable apprehension of bias on the part of all the members of the Trial Division. No one would ever ascribe to the Motions Judge and all his colleagues the dishonesty and pusillanimity implied by this finding. The Judge’s second error was his finding that the Chief Justice as well as the Assistant Deputy Attorney General were both acting in bad faith in an attempt to favour the position of the Crown. The pace of the proceedings before the Associate Chief Justice had been so slow as to give rise to a suspicion that justice was not being rendered with reasonable diligence. Once the Chief Justice had learned of that situation, he was duty bound to intervene. All parties were entitled to insist that justice be administered with diligence; none could claim a right to delayed justice.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24(1).
Citizenship Act, R.S.C., 1985, c. C-29, ss. 10(1), 18.
Courts of Justice Act, R.S.Q., c. T-16, s. 96.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 5(1)(a),(b), 6(3), 9(1), 10(1),(3), 50(1),(3).
Federal Court Rules, C.R.C., c. 663, R. 920(b)(iii),(iv).
CASES JUDICIALLY CONSIDERED
APPLIED:
Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; Beauregard v. Canada, [1986] 2 S.C.R. 56; (1986), 30 D.L.R. (4th) 481; 26 C.R.R. 59; 70 N.R. 1; R. v. Lippé, [1991] 2 S.C.R. 114; (1991), 64 C.C.C. (3d) 513; 5 C.R.R. (2d) 31; 5 M.P.L.R. (2d) 113; 128 N.R. 1; 39 Q.A.C. 241; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Reza v. Canada, [1994] 2 S.C.R. 394; (1994), 116 D.L.R. (4th) 61; 21 C.R.R. (2d) 236; 24 Imm. L.R. (2d) 117; 167 N.R. 282; 72 O.A.C. 348; R. v. Power, [1994] 1 S.C.R. 601; (1994), 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C. (3d) 1; 29 C.R. (4th) 1; 2 M.V.R. (3d) 161; 165 N.R. 241.
REFERRED TO:
Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267; (1995), 130 D.L.R. (4th) 1; 35 Admin. L.R. (2d) 1; 33 C.R.R. (2d) 269; 190 N.R. 1; R. v. O’Connor, [1995] 4 S.C.R. 411; (1995), 130 D.L.R. (4th) 235; [1996] 2 W.W.R. 153; 112 W.A.C. 1; 68 B.C.A.C. 1; [1996] B.C.W.L.D. 337; 103 C.C.C. (3d) 1; 44 C.R. (4th) 1; 33 C.R.R. (2d) 1; 191 N.R. 1; R. v. Jewitt, [1985] 2 S.C.R. 128; (1985), 20 D.L.R. (4th) 651; [1985] 6 W.W.R. 127; 21 C.C.C. (3d) 7; 47 C.R. (3d) 193; 61 N.R. 159; R. v. Young (1984), 46 O.R. (2d) 520; 13 C.C.C. (3d) 1; 40 C.R. (3d) 289; 10 C.R.R. 307; 3 O.A.C. 254 (C.A.); MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81.
AUTHORS CITED
Friedland, Martin L. A Place Apart: Judicial Independence and Accountability in Canada. Ottawa: Canadian Judicial Council, 1995.
Sgayias, David et al. Federal Court Practice 1996. Scarborough, Ont.: Carswell, 1995.
APPEALS from a Trial Division decision ([1996] 2 F.C. 729 ordering stays of citizenship revocation proceedings for breach of judicial independence. Appeals allowed.
COUNSEL:
W. Ian C. Binnie, Q.C., Christopher A. Amerasinghe, Q.C. and Paul J. Evraire, Q.C. for appellant (applicant).
Gesta J. Abols for respondent Erichs Tobiass.
Donald B. Bayne and Michael Davies for respondent Johann Dueck.
Michael A. Code and Robert B. McGee, Q.C. for respondent Helmut Oberlander.
SOLICITORS:
Deputy Attorney General of Canada for appellant (applicant).
Gesta J. Abols, Toronto, for respondent Erichs Tobiass.
Bayne, Sellar, Boxall, Ottawa, for respondent Johann Dueck.
Sack, Goldblatt, Mitchell, Toronto, for respondent Helmut Oberlander.
The following are the reasons for judgment rendered in English by
Pratte J.A.: I agree with the reasons of my brother Marceau and merely wish to add a few observations.
The order made by the Judge of first instance [[1996] 2 F.C. 729 is based on two manifest errors.
The first one is the Judge’s finding that, as a result of the Chief Justice’s intervention, there was a reasonable apprehension of bias on the part of all the members of the Trial Division. No reasonable person would ever ascribe to the Judge of first instance and all his colleagues the dishonesty and pusillanimity implied by this finding.
The Judge’s second error is his finding that the Chief Justice as well as the Assistant Deputy Attorney General who complained to him of the slow pace of the proceedings before the Associate Chief Justice were both acting in bad faith with the view of favouring the position of the Crown. That finding flows from a further finding to the effect that the references were proceeding normally before the Associate Chief Justice and that there was no legitimate reason justifying the Chief Justice’s intervention. Again, this finding is patently wrong. 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. In nearly a year, the references had made no real progress; not only had the Court failed to dispose of any of the preliminary motions of the parties but, after commencing to hear the argument in support of one of these motions on December 12, 1995, it had decided to adjourn the hearing to May 15, 1996, more than five months later. Once the Chief Justice had learned of that situation, irrespective of the circumstances in which the information had been conveyed to him, he was duty bound to intervene even though his intervention might frustrate the respondents’ attempts to put off the hearing of the references for as long as they could. The respondents’ interest in delaying the proceedings was not a legitimate interest worthy of protection. All parties were entitled to insist that justice be administered with diligence; none could claim a right to delayed justice.
The order made by the Judge of first instance was, therefore, as unwarranted as his indignation with the Chief Justice’s behaviour.
* * *
The following are the reasons for judgment rendered in English by
Marceau J.A.: This appeal by the Minister of Citizenship and Immigration is brought against an order of the Trial Division, whereby the proceedings identified in the above style of cause were stayed pursuant to subsection 50(1) of the Federal Court Act, R.S.C., 1985, c. F-7.[1]
These three proceedings relate to references filed by the Minister pursuant to section 18 of the Citizenship Act, R.S.C., 1985, c. C-29, as amended, seeking declarations that the three respondents were admitted to Canada for permanent residence and subsequently obtained Canadian citizenship “by false representations or fraud or by knowingly concealing material circumstances” within the meaning of subsection 10(1) of that Act.[2] Although filed on different dates, the references and the notices that preceded them are substantially similar, and as it appeared that the three proceedings required the settling of identical preliminary legal and procedural questions, the Associate Chief Justice directed that they be joined for the resolution of all the common pre-trial issues that could arise with respect to them. It is because of this direction that similar motions for stay filed by the respondents in each of the three files were disposed of together and by one order, the order under appeal.
The facts that led to the impugned order have been much commented upon in the media where they seem to have taken on a life of their own. They have also been expanded upon and clarified in two inquiry reports to which extensive publicity was given. It is clear, however, that this Court, sitting in appeal, must decide on the sole basis of the facts that were before the Judge of first instance.[3] As such, they are quite simple. On March 1, 1996, an assistant to the Deputy Attorney General met with the Chief Justice of the Court and expressed the uneasiness and concern of his Department with the slow pace in which the three references were being processed. The meeting was confirmed in an exchange of letters which were later disclosed to counsel and tendered in open court. The only information the Motions Judge had as to what was discussed at the meeting and what took place afterwards in relation to it was contained in these two letters dated the same day; for that reason, they ought to be reproduced once again in extenso:
March 1, 1996 HAND DELIVERED
The Honourable Chief Justice of the Federal Court 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 against humanity during the second world war. Over the course of the next three months the cases where 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 filing the facta and in a tele-conference 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 proceedings 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
(613) 957-4840/Fax 941-1972
BY HAND March 1, 1996
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 the argument in Nemsila but he has 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
According to the learned Motions Judge, there were two issues arising from the information that could be drawn from the content of these letters. He put them in the form of two questions [at page 739]:
(1) whether the correspondence between and conduct of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General is conduct which compromises judicial independence; and
(2) whether the correspondence between and conduct of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General constitutes an abuse of process.
For the Judge, an affirmative answer to either of the two questions required that the motions to stay be granted. As he came to the view that both questions had to be answered in the affirmative, he made the order here under appeal entering a stay of proceedings in the three references.
It may be proper to acknowledge at the outset the unique difficulty of this case in view of its subject-matter and the unusual circumstances that accompanied its development before the Court. First, the ultimate question involved is one of ethics and of moral and value judgment, with social and philosophical implications, certainly not one of pure legal reasoning, and the notions involved, those of “judicial independence”, “impartiality” and “abuse of process,” although eloquently and thoroughly analyzed in a few famous decisions of the Supreme Court, remain easier to characterize in the abstract than to apply in real life where, being subject to various subjective interpretations, they are bound to be perceived differently by different people. Second, the factual circumstances to be assessed and appreciated could give rise to so much speculation that, if viewed through an imagination allowed to go uncontrolled, they could jeopardize the objectivity, the moderation and the coolness required for the proper exercise of adjudicative functions. Third, the notoriety the case has acquired as a result of the interest shown by the media, the publication of two official reports, and the exchange of comments in Parliament, raised some unusual constraints on the autonomous, uninfluenced and wholly personal reflection that is at the heart of the role of a judge. And finally, the fact that the conduct of the Chief Justice of this Court was put in question required additional efforts to avoid becoming personally involved.
It is after much reflection and on the basis of the analysis that I am about to develop that I have come to my conclusion. This conclusion can be right away simply put. In my judgment, the facts, as they can be established from the content of the letters, do not support the view that there was a breach of judicial independence; and, even assuming that they could have left the impression that judicial independence had been somehow compromised, the entering of a stay of the three proceedings to make up for the problem was not a suitable and warranted remedy.
I come now to the two issues.
I
Was there a breach of judicial independence?
To approach properly an issue, the first and basic requirement is, naturally, carefully to define it. This is, of course, in itself a trite observation but I think it takes, when applied to the first issue to be considered, a quite unusual dimension. On the one hand, the concepts involved are so elusive that, without establishing clearly the factual context in which they are to be applied, the analysis may quickly go astray and become irrelevant. On the other hand, and even more importantly, the definition of the issue is, in this case, the central source of disagreement between the parties, and between the approach of the Judge below and my own approach.
Two preliminary remarks are, in this respect, absolutely crucial.
We are not dealing here with the judicial independence of the Court itself, of the institution as a whole, the institutional independence analyzed by the Supreme Court in its well-known judgments in Valente, Beauregard and Lippé.[4] We are dealing with the judicial independence required to ensure the impartiality of an individual member of the Court, the Associate Chief Justice, who had assumed responsibility for the “management” of the three references until they became ready for “trial". This is abundantly clear on the facts and could only be acknowledged by the learned Motions Judge. Indeed, it cannot be presumed that the Assistant Deputy Attorney General approached the Chief Justice in the name of or as a representative of the government and, in that capacity, attempted to bring pressure and impose the government’s views on the Court. Nor can it be alleged seriously that the Assistant Deputy Attorney General was, in fact, addressing the presiding Judge himself using the Chief Justice as a mere conduit or intermediary. The Assistant Deputy Attorney General could very well hope and foresee that the information would reach the presiding Judge, if the Chief Justice saw fit to do something about it, but, again, there was nothing in the evidence that could lead one to believe that he was using the Chief Justice as a mere instrument. Much has been made of the Assistant Deputy Attorney General’s so-called “threat” of a reference to the Supreme Court for the determination of one of the preliminary motions based on subsection 24(1) of the Charter [Canadian Charter of Rights and Freedoms , being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] in order to save time, but that was surely meant to convince the Chief Justice of the extent and seriousness of the Department’s concerns and was simply part of the information conveyed. To reason as if it were otherwise would be totally unwarranted. If there was an attempt to interfere with the independence of the judiciary, it came from the Chief Justice alone and was aimed at only one judge, the presiding Judge.
It is, in my judgment, patently wrong, therefore, to entertain the idea that the case is one of interference in the independence of the judiciary by the government or its representative acting alone or in conjunction with the Chief Justice. It is wrong also to say that judicial independence was breached when the Assistant Deputy Attorney General privately met with the Chief Justice and followed with a letter at the Chief Justice’s request. In fact, judging the conduct of the Assistant Deputy Attorney General is of no concern to us. In meeting with the Chief Justice and informing him of the frustration of the Department for the slow pace in which the cases evolved, did the Assistant Deputy Attorney General commit a serious and unacceptable indiscretion or did he act in a manner that departed from the standards expected of a Justice department employee? The question is not before the Court. Nor is before the Court, for that matter, the question of whether it was advisable for the Chief Justice and the Assistant Deputy Attorney General to exchange the correspondence they did in the words they used. Of course, to the outside observer, the meeting between the two, as the triggering event, and the words used in their correspondence are of some importance and I will come to that later. But, in trying to establish whether there was actually a breach of judicial independence, the Assistant Deputy Attorney General can only be seen as the source of the information which led the Chief Justice to intervene. He provided information that the Chief Justice could have obtained elsewhere, and the question would have been exactly the same if, indeed, the Chief Justice had been informed through another source.
My second preliminary observation is the following. It must not be forgotten that, as already noted, the only information that was before the Trial Division about the intervention of the Chief Justice and the only evidence on the basis of which the impugned order could have been made is contained in the two letters reproduced above. What can be drawn from them is that the Chief Justice had a conversation with the presiding Judge during which the information received from the Assistant Deputy Attorney General was conveyed and discussed, and that the presiding Judge understood and agreed to act upon it by making more court time available. To that information may, of course, be added the fact that the presiding Judge saw fit afterwards to remove himself from the management of the cases. That is all that was before the Court of first instance. To go beyond that information would, I think, be unfair and unacceptable. To draw from the two letters the elements of a conspiracy by which the executive, or its representative, would try to impose its view on the presiding Judge, reaching him through the agency of the Chief Justice, is not only totally unwarranted and improper speculation, as I already noted above, but presupposes that all participants, especially the Chief Justice and even including, in a sense, the Associate Chief Justice, are found to have acted in bad faith, a finding the Court cannot make and which a reasonable person would not make. And to assume any special form of pressure or presuppose any particular cause for fear is out of the question. In fact, anyone who is familiar with the organization of the Federal Court and keeps in mind that the presiding Judge was not a junior judge but the Associate Chief Justice, the head of the Trial Division responsible for its day-to-day operation, would be at a loss to imagine that any pressure could be exerted or any fear felt.[5]
These two preliminary remarks, which, unfortunately in my respectful opinion, completely escaped the Judge’s reasoning, put the question raised by the first issue in proper perspective. The question is whether the judicial independence of the temporary presiding Judge was breached or otherwise affected by the intervention of the Chief Justice during which the information received from the Assistant Deputy Attorney General was conveyed and discussed. My answer to that question is that it was not.
What is obviously involved here is the understanding that one may have of the role and responsibility of a chief justice with respect to the management of his or her court, keeping always in mind the necessary independence that must be assured to the puisne judges of the court in the exercise of their judicial duties. There is a balance here to be established and preserved, which raises a difficulty to which Chief Justice Lamer has alluded in Lippé[6] when he stated [at page 138], in the course of his reasons, that the “members of the Court must enjoy judicial independence and be able to exercise their judgment free from pressure or influence from the Chief Justice.” To my knowledge, though, how to achieve that proper balance has never been directly and significantly addressed, either in the jurisprudence (although the judgment in Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, is quite helpful in that respect) or in the legal literature (except indirectly by Martin L. Friedland in his published 1995 report to the Canadian Judicial Council).[7] There is, obviously, no doubt that for the exercise of judicial functions, that is to say, functions pertaining to the consideration and settlement of litigation between parties, all the members of the Court are equal and any attempt by a chief justice to use his position to influence the disposition of a case would definitely be intolerable. Reference to authorities to support such an obvious proposition is absolutely unnecessary. On the other hand, there is no doubt either that the authority and responsibility for the management of the Court and, to borrow the phrase used in the Quebec Courts of Justice Act,[8] for the establishment and direction of “the general policy of the Court in judicial matters,” rests with the Chief Justice, a proposition that the Ruffo case, supra, developed at length. The problem, of course, is to apply these well-known general propositions to real life, a problem which is compounded by the fact that the distinction between administrative and adjudicative functions in the activity of a court of law is not clear cut, those functions being often interrelated, interdependent, and possibly overlapping in particular practical contexts.
I realize that these propositions remain quite simple, but I think that they give the points of reference we need.
We are concerned here exclusively with a question of the delays, delays alleged to be undue, in other words slow pace in the management of cases. Is the function of the presiding judge in ordering, accepting or establishing time limits between the various steps necessary to carry forward a proceeding an administrative function or an adjudicative one? The short answer, to me, is that it may have elements of both. Dealing with the time line for preliminary elements of a case is part of the conduct of the case as a whole and, in so far as it may have effect on the ultimate outcome of the proceeding, it no doubt has adjudicative aspects. It is far from being always necessarily so, though. One must look to the reason for establishing particular time limits. Delays may be due to the necessity to give the parties sufficient time to prepare in view of the various steps to be properly taken and the complexity of the matter; they may be due to the illness of a party or a counsel; they may be due to the lack of available facilities in which to resume hearing; they may be due to the vacation plans of the presiding judge or to the work program of the presiding judge, etc.
In my judgment, a chief justice cannot entirely disinterest himself or herself from the pace of progress and the timeliness of disposition of the cases the Court has to deal with. He or she has a responsibility to ensure that the Court provides “timely justice”. Indeed, it is his or her duty to take an active and supervisory role in this respect. Obviously, given the profound effect that decisions relative to the timely management of a proceeding can possibly have on its ultimate outcome, this role will normally be exercised at a general over-seeing level and only quite rarely will it need to be exercised with respect to specific cases. But, if a matter appears to a chief justice to be moving abnormally slowly, a perception that is dependent on the subject-matter of the proceedings, and if he or she has grounds to suspect that the duties of the Court are not being carried out with due dispatch, then his or her mandate not only authorizes, but, I believe, imposes a positive duty to investigate. Of course, if the chief justice’s inquiries reveal that the delay has even a remotely adjudicative cause, then he or she must immediately desist. But the simple act of posing the question can certainly not be considered, in itself, an interference with the judicial independence of the presiding judge.
What do we have here if not a simple intervention by a chief justice for the purpose of ascertaining the cause of the slow pace of proceedings before the Court, an intervention made all the more understandable given that a question of the availability of facilities and court personnel appeared to be in part responsible? It was seen by some as “tainted” because it came after the Chief Justice’s meeting with the Assistant Deputy Attorney General. Let it be repeated, however, that it is the intervention of the Chief Justice with which we are concerned, not the intervention of the Assistant Deputy Attorney General, since it is the independence of the presiding Judge which is said to have been interfered with and the only person who discussed the pace of the cases with the presiding Judge was the Chief Justice. It was suggested by others that there was nothing to inquire into, as proceedings were not moving slowly at all. It is difficult to agree with this assertion in view of the very special factual circumstances of the cases coupled with the fact that more than a year had elapsed since the filing of the references and the only positive step to advance significantly the proceedings had been to devote one day of argument on the first of three preliminary motions, following which the uncompleted hearing had been adjourned to five months later. There was no way for the Chief Justice to understand the reasons for this quite unusual delay without inquiring. It was also said that much of the delay was due to the failure of the appellant to make full discovery, but what discovery was required was the object of one of the preliminary motions; besides, any possible lack of diligence or resistance to disclosure of documents does not explain delays in court appearances and availability. Here again, only the presiding Judge could provide the necessary explanation. Finally, it was contended that, by relaying the information that the Department was thinking of a reference to the Supreme Court in order to save time, it was exerting undue pressure. But what real harmful consequence could a reference have for the individual members of the Court? Ultimately, there is nothing to support an inference that the Chief Justice, by his inquiry, meant to go farther than to discuss the situation with the Associate Chief Justice with the sole purpose of fulfilling the Chief Justice’s responsibility for, and the Court’s mandate to ensure “timely justice” and thereby avoid a possible embarrassment for the institution. Accordingly, in my view, the intervention of the Chief Justice in the circumstances of this case did not constitute an interference with the judicial independence of the presiding Judge; it was not made in favour of one party to the detriment of the other, and could, in no way, affect the impartiality of the presiding Judge. The same could be said regardless of which judge was involved but particularly so when one keeps in mind that it was the Associate Chief Justice.
Is that conclusion determinative? It is well established that it is not wholly satisfactory. That a judge will remain unbiased, impartial and independent of all parties is such an important premise, on which our system of justice is directly founded, that it is imperative, to gain the full confidence of the people subjected to it, that he or she not only must not be in fact an ally or support of one of the parties, but also must not be perceived as such. The question, therefore, must be broadened to include whether, in spite of the fact that there was no actual breach of independence, a reasonable observer could believe the presiding Judge’s judicial independence to have been affected and, as a result, his impartiality put in jeopardy. I doubt that to give effect to the impression of the outside observer is as imperative here, where it is question of the inter-relationship of the members of a court, as it would be if the institutional judicial independence of the court or the independence of its members from undue outside pressure were at stake; and, in any event, I am confident that a reasonable person fully apprised of the role and responsibilities of a chief justice and of the particular set-up of the Federal Court with its two divisions[9] would not remain in doubt that the conduct of the Chief Justice did not constitute a breach of the judicial independence of the Associate Chief Justice. Nonetheless, I am prepared to accept that given the obvious misunderstandings of so many people; given also the extraordinary sequence of events: the meeting between the Chief Justice and the official of the Department, the exchange of letters, the discussion between the Chief Justice and the presiding Judge about the Department’s concerns and frustrations, the tender of the letters in open court, the self-imposed removal of the Trial-Judge, to which may be added the declaration of the Minister of Justice in Parliament; given finally the undeniable fact that the Chief Justice’s letter can be read to support an inference that the Associate Chief Justice was persuaded to change his mind about the time line, it could be hard to dispel all doubt in the minds of observers that the situation was totally normal and did, in no way, impinge upon the freedom of the presiding Judge to exercise as he saw fit his judicial capacity. But then comes the second issue. What remedy, if one was required, was appropriate?
II
If a remedy is required, is the stay of proceedings a proper one?
I must first here, with respect, reject the manner in which the Trial Division Judge defined this second issue. It is obvious that the conduct of the Chief Justice and of the Assistant Deputy Attorney General cannot constitute in itself an abuse of process within the meaning of that expression in legal parlance. It is not the impugned conduct that constitutes the abuse of process, but the continuation of the proceedings in the face of that conduct. So the true issue is whether whatever doubt that may persist as to the propriety of the intervention of the Chief Justice warranted a stay of proceedings. It is only through the exercise of the power given to the Court by paragraph 50(1)(b) of the Federal Court Act that a stay could be ordered. I repeat this provision for convenience:
50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
…
(b) where for any other reason it is in the interest of justice that the proceedings be stayed. [Emphasis added.]
In the circumstances that prevail here, it is to be taken that the effect of the stay is to preclude, absolutely and virtually in perpetuity, the pursuit of the references against the respondents. That being so, I cannot see how such a final decision, which obviates any chance for an assessment of the charges on their merits, can be viewed as being “in the interest of justice”.
It is clear to me that this case is completely different from those in which actual misconduct on the part of representatives of the Crown was found to have existed, which could be seen as having tarnished the administration of justice, and required to be countervailed by a remedy capable of bringing a sort of purification. There was no misconduct here, in my judgment. The only problem arises from a possible perception on the part of the public that the intervention of the Chief Justice, triggered by the revelation of the Assistant Deputy Attorney General, was improper and would impair the free judgment of the presiding Judge. It is the remedy required to cure that problem and no other that is demanded by the interest of justice. Indeed, the Supreme Court has many times, and most recently in R. v. O’Connor,[10] directed that the least intrusive remedy capable of curing a breach has to be imposed.
The Trial Division Judge grounded his decision on his belief that [at page 746] “[a] reasonable person would conclude that even if the Associate Chief Justice removed himself from these three cases, another judge of this Court could be perceived as responding to the pressure that was brought to bear by the Chief Justice of the Federal Court and the Assistant Deputy Attorney General”. I can only disagree. Even if it can be assumed that the interference of the Chief Justice was sufficient to found a reasonable apprehension that the Associate Chief Justice would remain under the influence of the Chief Justice’s expression of concern and, as a result, could no longer decide in an impartial fashion, there is nothing to suggest that a reasonable person would entertain such an apprehension of bias with respect to all members of the Court, at least in any other respect than the need to ensure the expeditious disposition of the cases. The very judgment under appeal eloquently supports that assertion. I cannot imagine that the independence and/or impartiality of the Court as a whole, and not just the presiding Judge, would appear to a reasonable and informed person to be so affected. Once the management of the cases was assumed by another judge, any possible perception of a lack of individual judicial independence was reduced to below the reasonableness threshold. Whatever degree of influence may have been brought to bear on the presiding Judge is surely so diluted with respect to the presiding Judge’s replacement that no reasonable person would be concerned.
This is not akin to a case in which “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency” (R. v. Jewitt, [1985] 2 S.C.R. 128, at page 135 [adopting the statements in R. v. Young (1984), 46 O.R. (2d) 520 (C.A.), at page 551]). On the contrary, it is more akin to the situation in R. v. O’Connor, supra, in which a less drastic remedy is available and must be pursued instead of a stay. Here, the less drastic remedy was already in place, a different judge now being in charge. In my respectful opinion, the motions for stay of proceedings were totally ill-founded.
I am not oblivious to the fact that section 50 of the Federal Court Act leaves the decision as to the stay to the discretion of the judge and that strict conditions must be met before a court of appeal may intervene in a discretionary decision. But these conditions, as the Supreme Court had occasion to reaffirm them once again in Reza v. Canada, [1994] 2 S.C.R. 394, have certainly been met, in my respectful opinion. It is clear to me that the Motions Judge exercised his discretion as to the proper remedy on wrong principles or without giving proper weight to all relevant considerations, the most important being: that there was no actual judicial interference but, at most, an apparent minimal impropriety, and not on the part of the government but by the Chief Justice; that there was no suggestion that the respondents’ right to a fair trial would be adversely affected; that, in actual fact, no harm was done to the respondents at all; and that the public has a significant interest in having allegations as serious as those against the respondents determined on their merits.
I would allow the three appeals, set aside the order of the Trial Division and dismiss the three motions for stay of proceedings.
* * *
The following are the reasons for judgment rendered in English by
Stone J.A.: I have had the privilege of reading in draft the reasons for judgment of both of my colleagues, and although I agree that the appeals should be allowed I desire to discuss more fully the context of the litigation from which the events of March 1, 1996 emerged, the legal principles I consider to be relevant and their application in the circumstances of the cases.
These appeals raise two important issues, namely whether the learned Motions Judge correctly determined that no judge of the Trial Division could act independently in adjudicating the cases and, secondly, that in the circumstances a stay for abuse of process was warranted. A third issue, in limine, is whether the decision to stay is reviewable at all given its discretionary nature.
There appears little difference among the parties as to the salient facts. Where they differ, as will be seen, is with respect to the characterization of those facts.
It is desirable at the outset to place the events of March 1, 1996 in the full context of the litigation then pending before the Trial Division. By a “notice in respect of citizenship” dated January 27, 1995 sent to each of the respondents, the appellant announced his intention of proceeding under section 18 of the Citizenship Act , R.S.C., 1985, c. C-29, as amended (the Act), for revocation of citizenship granted under earlier legislation. He alleged that each of the respondents had obtained citizenship by “false representations or fraud or by knowingly concealing material circumstances”. The appellant filed a “notice of reference” with the Court with respect to the respondent Tobiass on March 20, 1995, with respect to the respondent Oberlander on April 24, 1995 and with respect to the respondent Dueck on May 1, 1995. Thereafter, the appellant served each of the respondents, pursuant to subparagraphs 920(b)(iii) and (iv) of the Federal Court Rules [C.R.C., c. 663], with “a summary of the facts and evidence on which the [appellant] intends to rely at the hearing of the case” and “a list containing the names and addresses of any witnesses he proposes to call at the hearing of the case, and of any documents he proposes to tender in evidence”. Rule 920 lays down the procedure applicable to cases brought under section 18 of that Act. It reads:
Rule 920. The following provisions shall apply to the hearing of a case (section 17 of the Act);
(a) upon receipt of a request to the Minister by a person (hereafter the “person”) in respect of whom the Minister intends to make a report pursuant to section 9 of the Act that the case be referred to the Court, the Minister shall, if he decides to refer the case to the Court, forward a copy of the request and of his reference to the Court to the Registry;
(b) the Minister shall, within 14 days thereafter, file in the Registry and serve on the person,
(i) the application made by that person pursuant to subsection 13(1) of the Act,
(ii) the decision of the citizenship judge thereon,
(iii) a summary of the facts and evidence on which the Minister intends to rely at the hearing of the case, and
(iv) a list containing the names and addresses of any witnesses he proposes to call at the hearing of the case, and of any documents he proposes to tender in evidence;
(c) the provisions of Rules 906, 907, 908, 909, 910, 915, 916, 917 and 919 shall, with all necessary modifications, apply to a case.[11]
In April and May 1995, the appellant served and filed in each case motions for the assignment of a judge and/or for directions. Correspondence between the appellant and counsel for the respective respondents ensued with respect to these motions. This was followed on various dates in May and June 1995 with motions by two of the respondents for directions and by the respondent Oberlander with a motion for full disclosure. Late in June 1995 motions were filed by two of the respondents requesting, in effect, that all motions for directions be heard together. The Associate Chief Justice heard the parties in open court on June 30, 1995, at which time counsel for the respondent Dueck indicated that he would shortly be bringing a motion to stay for abuse of process. At the same time, counsel for the respondent Tobiass raised a number of jurisdictional objections. In view of those developments and, apparently, over the objection of counsel for the appellant, the Associate Chief Justice ordered[12] that “any attack on questions of jurisdiction, constitutional validity or abuse of process, including those based on any Charter argument” be filed in writing with supporting material by July 31, 1995, that the appellant respond thereto by August 31, 1995 and that any reply material be filed by September 15, 1995. An effect of this order was that of indefinitely deferring the hearing and disposition of all motions previously filed by the parties. Nevertheless, as the record shows, the appellant made some disclosure in the cases but, apparently, not such as satisfied the respondents.
By letter of June 30, 1995, counsel for the respondent Dueck asked the appellant to disclose certain information with respect to the stay motion that he was about to launch. A similar request was made by counsel for the respondent Tobiass on July 7, 1995. Disagreement concerning these requests soon arose. By letter to the Registry of July 21, 1995, the appellant requested that this new issue be dealt with by the Associate Chief Justice, if necessary by scheduling a hearing with a view to giving further directions. In the meantime, the parties complied with the terms of the June 30, 1995 order, each of the respondents filing a separate motion to stay. On October 4, 1995, the Associate Chief Justice heard the parties via a telephone conference as scheduled by the order of June 30, 1995. During that hearing counsel for the appellant indicated that he wished to raise an issue of privilege in relation to disclosure of information sought by the respondents in connection with the stay motions. All counsel agreed that issues of disclosure and privilege would need to be determined as a first priority. Thereupon the Associate Chief Justice fixed December 12, 1995 for argument on those issues.[13]
The whole of the December 12, 1995 hearing day was taken up by counsel for the respondent Dueck, after which the argument was adjourned to a date to be fixed. On January 10, 1996, the Associate Chief Justice fixed May 15 for continuation of argument.[14] This did not satisfy the appellant. On January 15, 1996, his counsel, Mr. Amerasinghe, wrote to the Court[15] vigorously opposing the delay, and proposing a schedule for the filing of written argument in lieu of oral argument, to be completed by March 15, 1996. He explained the reasons for the proposal as follows:
The scheduling of the completion of argument on a preliminary issue for May 15 and 16, 1996, is unsatisfactory from the standpoint of the Applicant. I would note that the cases were initially referred to the Court last spring (the Tobiass case on March 20, the Oberlander case on April 28, and the Dueck case on May 4, 1995) and the Court has yet to render a single decision on any of the preliminary motions before it. In fact, the motion currently underway, concerning the privilege attaching to various Crown documents, is preliminary to the Respondents’ stay application, which is in turn preliminary to the Motions for Directions which are outstanding in all three cases.
While I appreciate that the Court needs to reconcile its schedule with that of counsel for the Respondents, a number of factors indicate strongly that these cases need to be dealt with in an expeditious manner. Both the Respondents and the witnesses for the Applicant are of an advanced age and some may be frail in health. It is in the interest of all parties to have the substantive issues resolved as soon as possible, and given the advanced age of the parties and witnesses it is in the interest of justice that these matters be dealt with as expeditiously as possible.
On February 19, 1996, a telephone conference hearing was convened by the Associate Chief Justice with respect to that proposal and, after hearing counsel, he ruled that argument would continue “as previously scheduled”, on May 15 and 16, 1996.
There the proceedings stood as at the end of February 1996. In short, the hearing of the various motions for directions and disclosure launched in April, May and June 1995, had been effectively deferred until after the stay motions and the issues related thereto would be disposed of. Argument in relation to the issues of disclosure and privilege was scheduled to continue on May 15 and 16, 1996. Only after those issues would be determined could the Court take up the stay motions themselves. If those motions failed, the Court would next address the various other preliminary motions that were outstanding since April, May and June 1995, and only after that could it proceed to the trial of the cases on their merits.
On March 1, 1996, the Assistant Deputy Attorney General approached the Chief Justice of the Court at his chambers in Ottawa. This was followed on that day by the exchange of letters between the Assistant Deputy Attorney General and the Chief Justice. The text of those letters are fully reproduced in the reasons for judgment of my colleague Marceau J.A. [supra, at pages 837-839]. They speak for themselves. On March 7, 1996, Mr. Amerasinghe sent copies of the letters to opposing counsel. In the covering letters Mr. Amerasinghe wrote:
I am advised that Mr. Thompson [Assistant Deputy Attorney General (Civil Litigation)], who is responsible for the conduct of all civil litigation by and against the Federal Government, approached the Chief Justice of the Federal Court of Canada to discuss the capacity of the court to deal with up to twelve cases this year involving the revocation of citizenship of persons who had been investigated for activities during the second world war, and to explore appropriate administrative steps to ensure the cases could be dealt with expeditiously. In this context he expressed his general concern about the pace at which the cases presently in court were proceeding and informed the Chief Justice of steps which the government was considering to expedite the process.
The Chief Justice requested that Mr. Thompson set out the chronology of the three revocation of citizenship cases presently before the court to assist him in discussing the matter with the Associate Chief Justice. Mr. Thompson accordingly sent the letter dated March 1, 1996 to the Chief Justice. Since the Chief Justice in his response has referred to proposals by the Associate Chief Justice to expedite the three cases which he is currently hearing, I am instructed to invite you to make whatever submissions you may wish to make in regard to the proposals to expedite the … case to the Associate Chief Justice.[16]
Steps taken by the Court subsequent to March 7, 1996, during the period leading up to the scheduled resumption of argument on May 15, 1996, require some mention. On April 10, 1996, the Court’s registry telephoned counsel for each of the parties, apparently to the following effect:
The remainder of the preliminary motions on disclosure and any other motions including the stay motions and possibly the motions for directions will be dealt with May 15th and 16th, 1996, and the following week beginning possibly the afternoon of May 21st (Judge has case in morning which may finish, in which case Dueck et al. will start in afternoon) or the morning of the 22nd at the latest and for the remainder of that week. In addition, he is going to make himself available to deal with whatever is still outstanding the last week of June and all of July.[17]
There next followed, on April 23, 1996, a letter to the Court from counsel for the respondent Dueck indicating his intention of bringing a motion to stay for alleged interference with judicial independence that had occurred on March 1, 1996[18]. The following day the Associate Chief Justice directed all parties to appear before him on April 30, 1996 “for the purpose of meeting on the above-noted files”[19]. The precise purpose of the meeting is further elucidated in a memorandum of April 25, 1996 from the Associate Chief Justice to the Registry for transmission to all counsel, stating that it would be to “discuss the use of the days that have been scheduled for May 15th and 16th, the order of argument and whether any further delays will be required to conclude submissions on the preliminary issues in the 3 files”.[20] The Associate Chief Justice went on to question whether he could continue in the matters. He wrote:
However, in the light of Mr. Bayne’s correspondence, we should also address as soon as possible whether I can continue in these hearings. It may be that if time permits I could consider it Tuesday. If not, I would be prepared to set it for the following week, preferably Wednesday, May 8th at 2 p.m. in Ottawa.[21]
On April 30, 1996, the parties appeared before the Associate Chief Justice in open court at Toronto. The Associate Chief Justice made clear at the outset that “the main order of business … on the 15th will be to conclude the issue of documents”, and also that if argument was not completed on that day “[t]he 16th, of course, is set aside for it, as well”. It soon became apparent, however, that the respondent Dueck would shortly file a motion to stay. There then followed some discussion of the need for additional dates for the hearing of such a motion, in the event that the time set aside on May 15 and 16, 1996 proved to be insufficient. During the course of the hearing the Associate Chief Justice intimated that he did not “feel very comfortable” in continuing as judge in the cases in view of the indication that a stay motion would shortly be filed.[22] Counsel for the respondent Dueck saw no problem in the Associate Chief Justice continuing to deal with his client’s stay motion, and counsel for the respondent Oberlander adopted a similar stance.[23] The Associate Chief Justice decided to leave open the option of his continuing or of another judge of the Trial Division being substituted. He indicated, however, that the stay issue “would take precedence” on May 15 and 16, 1996.
On May 6, 1996, the Associate Chief Justice recused himself of further involvement in the cases. In his memorandum of that date[24] counsel were informed as follows:
First, when this matter resumes May 15th, 16th and 17th, and if necessary the week following, the matter will be dealt with by another member of the Court.
I am also clearing all other assignments from the presiding Judge’s list to permit him to devote whatever time is necessary to deal with all matters in issue in these three files. Counsel should therefore be ready to attend on a continuous basis if necessary to conclude the preliminary questions in these files and, as the presiding Judge may determine, to address the hearing on the substantive issues.
As I had indicated when I first accepted the case management responsibilities in these three files, it is appropriate that the same Judge deal with any other similar applications to be brought forward by the Minister. All counsel should therefore be prepared to discuss the details of all of this scheduling with the presiding Judge May 15th, 16th or 17th.
That same day the respondent Dueck launched his motion for a stay of proceedings pursuant to section 50 of the Federal Court Act “and/or” the doctrine of abuse of process. This was followed by similar motions filed by the respondents Tobiass and Oberlander on May 10, 1996. Argument on those motions proceeded on May 15, 16 and 17 and on dates in June 1996. During the course of argument, counsel for the appellant, Mr. Amerasinghe, conceded that “both the meeting and the letters should not have occurred, it is incorrect, it is inappropriate”,[25] that the “line” had been “overstepped” and that what had occurred on March 1, 1996, “was incorrect, was improper, was inappropriate”.[26] On July 4, 1996, the motions were granted and the order made staying all three cases for revocation of citizenship.
The stay order
The Motions Judge discussed the subject of “judicial independence” with particular reference to the decisions of the Supreme Court of Canada in Valente v. The Queen et al. , [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; and R. v. Lippé, [1991] 2 S.C.R. 114. He noted as well that the latter case had been followed in four subsequent decisions of the Supreme Court including Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267. He also noted that Valente, supra, had confirmed the test for independence as the same as that set out for impartiality by de Grandpré, J. in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. He then summarized the principles flowing from these various cases, as follows [at pages 742-743]:
From the jurisprudence, I have taken the following principles. Judicial independence encompasses both individual and institutional elements. First, an individual judge must hear and decide the cases that come before him or her without interference from outsiders, including the government, the Canadian Judicial Council, a provincial bar society, other judges or parties to the litigation. Second, the court, as the protector of the Constitution, must be institutionally independent from the other branches of government. While judicial independence is related to impartiality, the two concepts are not identical. Impartiality, or bias, concerns an individual judge’s state of mind; independence refers to the underlying relationship between the judiciary and the government, broadly defined. Both independence and impartiality are to be measured objectively, in that a reasonable person must perceive that both individual judges and the court as an institution adjudicate and function in an atmosphere free from actual or perceived influences. As stated in Rex v. Sussex Justices. Ex parte McCarthy, [1924] 1 KB 256, at page 259, and paraphrased in countless other decisions: “justice should not only be done but should manifestly and undoubtedly be seen to be done”.
The Motions Judge correctly regarded the case as one of individual independence rather than institutional independence. In his view, as stated at pages 743-744, the case “is about the liberty of an individual judge to hear and decide the cases, free of interference from the Chief Justice … or the Assistant Deputy Attorney General”. At pages 744-746, he gave the following reasons for concluding that “the judicial independence of the Court has been impaired”:
The question is not whether the Associate Chief Justice was influenced, or would have been influenced, by what transpired between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General of Canada if he had maintained carriage of these cases. There is no persuasive evidence in the record that the Associate Chief Justice was actually influenced or that he would have acted unfairly in any way. Rather, the question before me is: would a reasonable person, having read the correspondence between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General of Canada, conclude that a judge of this Court could act independently in adjudicating the respondents’ cases? Despite the able arguments of counsel for the Minister, I am satisfied that a reasonable person would believe there has been judicial interference and these three respondents would not be coming before an independent court.
The meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General took place without notice to the parties to the litigation, at a point in the proceedings where a number of judicial decisions concerning the respondents’ cases had already been made. The Associate Chief Justice had already ruled on joining the cases, decided in which order the motions would be heard, determined that submissions would take place orally and not in writing, heard argument for one full day and set down the matter for continuation, over the protestations of counsel for the Minister. As the correspondence which followed the meeting indicates, the Chief Justice of the Federal Court and the Assistant Deputy Attorney General were well aware that the respondents’ cases were actively being considered by the Associate Chief Justice. Given this context, and the admonitions set out in the case law concerning judicial independence and non-interference by the government, it cannot reasonably be asserted that the Chief Justice of the Federal Court and the Assistant Deputy Attorney General were unaware that their meeting and discussions were patently wrong.
Following that meeting, the Chief Justice of the Federal Court intervened and related the Government’s concerns regarding the conduct of the respondents’ cases to the Associate Chief Justice. According to the Chief Justice of the Federal Court, the Associate Chief Justice promised to deal with the pending matters expeditiously and would “devote one full week from 15 May to deal with these cases not only with respect to the preliminary points but also with respect to the merits.” In my view, a reasonable person would conclude that the Associate Chief Justice, now that he “appreciated” the “urgency of dealing with these matters as expeditiously as the Government would like,” would feel obliged to hurry the respondents’ cases along, perhaps to their detriment.
The interference by the Chief Justice of the Federal Court and the Assistant Deputy Attorney General cannot be excused by saying that the actions or decisions of the Associate Chief Justice were delaying the respondents’ case. First, I cannot conclude that the cases were progressing unusually slowly or that the Associate Chief Justice was acting negligently. The motions pending in the respondents’ cases concern questions of evidence, disclosure and the Charter; these are not matters which can be resolved quickly. Second, even if the cases were progressing too slowly for the government’s liking, the proper course of action would have been to seek a reference to the Supreme Court of Canada or to try to reach a scheduling arrangement with the other parties. To approach the Chief Justice of the Federal Court without notice to the parties or to issue a veiled threat of a reference to the Supreme Court is not the solution.
The influence or pressure that was brought to bear on the Associate Chief Justice is especially egregious, given that the statements were conveyed by the Chief Justice of the Federal Court. Although counsel for the Minister submitted that the Associate Chief Justice, pursuant to the Federal Court Act, is the President of the Trial Division and is not subject to the supervision or direction of the Chief Justice of the Federal Court, to rely on legal formality obscures the reality of the situation. This is not an instance where a judge of equal rank expressed his or her ideas on a pending case or gave unsolicited advice to another judge. Here, the information came directly from the head of this Court, on the urging of a senior government official who also acts for one of the parties. A reasonable person would conclude that even if the Associate Chief Justice removed himself from these three cases, another judge of this Court could be perceived as responding to the pressure that was brought to bear by the Chief Justice of the Federal Court and the Assistant Deputy Attorney General.
It is not sufficient to say that the respondents’ cases are of such importance to Canadian society that the transgressions of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General should be overlooked. In my view, the fact that the accusations against the respondents are so serious demands a very high level of judicial independence. Despite the Government’s protestations that the respondents’ citizenships are sought to be revoked solely on the basis that they made false representations, committed fraud, or knowingly concealed material circumstances, this Court and the general public are well aware that the false representations, fraud or material circumstances relate to alleged war crimes or crimes against humanity. These are heinous acts and ones which, in my view, should not go unpunished. But the fact that these crimes are so serious and carry with them such moral disapprobation also demands that the judge who hears them is convinced by the evidence alone, and not by pressure that was brought to bear by any outsider.
In deciding to stay the three cases the Motions Judge had this to say, at pages 748-749:
I have carefully considered whether a remedy, other than a stay of proceedings, would meet the requirements of justice. For example, would a complaint or disciplinary proceedings before the Canadian Judicial Council or Law Society of Upper Canada remedy the breach of judicial independence? I have concluded that they would not. First, the jurisdiction and proceedings of the Canadian Judicial Council or the Law Society are independent of this Court. This Court cannot, and should not, seek to influence or burden parallel proceedings that may or may not be commenced. Second, and most importantly, this Court must safeguard its own independence. It must take responsibility for its own integrity and not leave the sound administration of justice in the hands of another body. To do otherwise would, in my opinion, weaken judicial independence and leave the impression that transgressions of the Court’s integrity may be reprimanded but, ultimately, will be forgotten. The public must be assured that anyone coming before this Court will be treated fairly and that the Government or another powerful party will not enjoy a special advantage.
As I have already made clear, the clandestine meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General, and the subsequent intervention with the Associate Chief Justice, was a serious breach of judicial independence. In my view, this affront to judicial independence is the “clearest of cases” and a stay of proceedings, in each of the three respondents’ cases, will be granted.
Standard of review
In seeking a stay the respondents invoked, inter alia, the provisions of paragraph 50(1)(b) of the Federal Court Act, which reads:
50. (1). The Court may, in its discretion, stay proceedings in any cause or matter,
…
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
Subsection 50(3) empowers the lifting of a stay “in the discretion of the Court”.
It is clear that, as the Supreme Court decided in Reza v. Canada, [1994] 2 S.C.R. 394, at pages 404-405:
… the test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-77, per La Forest J. See also Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 154-55.
The issues before the Motions Judge did not exclusively involve the exercising of a discretion bestowed by section 50 of the Federal Court Act. As we have seen, that discretion is very broad. The Motions Judge granted the stay after concluding that the meeting and exchange of correspondence between the Chief Justice and the Assistant Deputy Attorney General on March 1, 1996 with respect to the three cases revealed a perception of interference with personal independence and involved an abuse of process. It would seem unobjectionable, therefore, for a reviewing court to examine the caselaw upon which the Motions Judge relied in order to be satisfied that the principles laid down therein were properly applied. Despite the discretionary nature of the order under appeal this Court must yet be satisfied that the Motions Judge “gave sufficient weight to all relevant considerations”.
I shall now consider the first issue.
Judicial independence and impartiality
No issue arises with respect to institutional independence. The Motions Judge found that, given the events of March 1, 1996, there is here a perception that no judge of the Trial Division could act independently. That the test for independence and for impartiality includes a reasonable perception thereof was made clear by Le Dain J. in Valente, supra, at page 689:
Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.
As appears at page 684 this test had been applied by the Ontario Court of Appeal in that case, and is best expressed in the following oft-quoted words of de Grandpré J. in Committee for Justice and Liberty, supra, at page 394:
… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude ….”
None can deny that judicial independence lies at the very heart of a Canadian court’s ability to do justice and to command public confidence in the administration of justice. This was made plain by the Supreme Court in Valente, supra; Beauregard, supra; MacKeigan, supra; and Lippé, supra. In Beauregard, supra, Dickson C.J. stated at page 69:
Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider—be it government, pressure group, individual or even another judge—should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle.
In Lippé, supra, Gonthier J., for the majority on the issue, stated at page 154 that personal independence “includes both independence from government and independence from the parties to the litigation”. He illustrated the importance of independence from the parties, at pages 155-156, as follows:
The doctrine of judicial immunity as a protection of the independence of judges vis-à-vis the parties was expressed in colorful terms by Lord Denning, M.R., in the case of Siros v. Moore, [1975] 1 Q.B. 118, quoted in the case of Morier v. Rivard, [1985] 2 S.C.R. 716, at p. 739:
If the reason underlying this immunity is to ensure “that they may be free in thought and independent in judgment,” it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers asking himself: “If I do this, shall I be liable in damages?”
As I stated at the outset, the parties characterize the salient facts somewhat differently. To the appellant the events of March 1, 1996, were but a bona fide attempt by the Chief Justice in his capacity as such to respond to legitimate concerns of a litigant with respect to perceived delay in the pace of the litigation in view of the age and state of health of the respondents and of potential witnesses. The respondents’ motions to stay of July and August 1995 for abuse of process and matters related thereto had created a “log jam” rendering it impossible for the various motions for directions and disclosure and for the cases themselves to proceed towards trial in a timely way. The longer it took for the stay motions to be heard and disposed of the greater would be the delay in reaching the motions for directions and disclosure—assuming they were reached at all—and the more distant in time for the cases to reach trial. This concern had been already conveyed to the Court in Mr. Amerasinghe’s letter of January 15, 1996, and it was only afterward that the Assistant Deputy Attorney General approached the Chief Justice, who enjoyed rank and precedence over all the other judges of the Court including the Associate Chief Justice. The problem was one of scheduling, and it was not an intrusion on personal independence for the Chief Justice to investigate the complaint of inordinate delay in order to learn whether there was any substance to it.
The respondents interpret the events of March 1, 1996 quite differently. They note that the attendance of the Assistant Deputy Attorney General upon the Chief Justice and the correspondence with him was ex parte. They characterize the letter to the Chief Justice as an attempt by a party through the Chief Justice to pressure the Associate Chief Justice in his conduct of the cases by holding out the “threat” of a reference to the Supreme Court. They say that in fact the letter was deceptive in that it left the impression that the appellant was in no way responsible for the delay when in fact, although the appellant had grudgingly made some disclosure, he was not, on March 1, 1996, in a position to proceed to trial of the cases by any stretch of the imagination. They suggest as the true motivation for the intervention the removal of the Associate Chief Justice from the cases on account of previous rulings in matters of scheduling. The meeting between the Chief Justice and the Assistant Deputy Attorney General, they contend, is proof that the pressure had the desired effect, as may be seen from the concluding paragraph of the Chief Justice’s letter. In short there was here, in the words of Dickson C.J. in Beauregard, supra, interference “in fact, or [an] attempt to interfere” with the way in which the Associate Chief Justice was conducting the cases and making his decisions.
Despite these last submissions, I, like my colleagues, can find 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. I can find nothing to support the suggestion of the respondents that the true motivation was that of pressuring the Associate Chief Justice into revising previous scheduling decisions or, much less, withdrawing from the cases. A fair reading of the record suggests that the decision of June 30, 1995 to accord priority to the stay motions that were about to be launched and issues related thereto effectively prevented the Court from dealing with the preliminary motions filed earlier and with the merits of the cases. The stay motions and related issues, not unreasonable, became matters of priority. Marceau J.A. has explained the peculiar role of the Chief Justice within the Court’s structure. He is, indeed, “president” of the Court.[27] Although the Court consists of two divisions, and the Associate Chief Justice is president of the Trial Division,[28] there is but one Chief Justice for the entire Court. I respectfully agree that the Chief Justice, in conformity with his overseeing role, could be expected to reasonably investigate with the Associate Chief Justice the complaint of alleged delay in the pace of the litigation. He could not dictate the response of the Associate Chief Justice, and there is no evidence that he did. Moreover, as the Motions Judge found: “There is no persuasive evidence … that the Associate Chief Justice was actually influenced or that he would have acted unfairly in any way”.
A question remains of whether an informed person viewing the matter realistically and practically—and having thought the matter through” would conclude that a breach of personal independence occurred? It is true that the Assistant Deputy Attorney General addressed his letter to the Chief Justice rather than to the Associate Chief Justice. Its whole tenor, nevertheless, is of frustration with the pace of litigation of which, as the letter stated, the “Associate Chief Justice Jerome had become seized”. His meeting and correspondence with the Chief Justice was done ex parte. Some concern with the Court’s capacity to deal with the class of cases in a timely fashion was obviously raised, but it is evident that delay in the progress of these three cases was the primary focus. As the Chief Justice’s letter reflects, the decision of the Associate Chief Justice to “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” was made after “he read your letter”. In my view, an informed person would conclude that this decision, by which the hearing of all preliminary motions and the trials would be compressed into a relatively short time frame, would redound to the disadvantage of the individual respondents and was taken so as “to avoid” a reference to the Supreme Court. It is true that on April 10, 1996, the Associate Chief Justice did indicate that “[t]he remainder of the preliminary motions and any other motions including the stay motions and possible the motions for directions” would be dealt with at the May hearing, and on May 6, 1996 that counsel should “be ready to attend on a continuous basis if necessary to conclude the preliminary questions in these files and, as the presiding Judge may determine, to address the hearing on the substantive issues” (emphasis added). However, it is upon the events of March 1, 1996 that an informed person must base a perception.
Remedy
I turn, finally, to the issue of remedy. The Motions Judge characterized the events of March 1, 1996 as an “affront to judicial independence”, and the “clearest of cases” for granting a stay. He had earlier determined that “[a] reasonable person would conclude that even if the Associate Chief Justice removed himself from these three cases, another judge of this Court could be perceived as responding to the pressure that was brought to bear by the Chief Justice of the Federal Court and the Assistant Deputy Attorney General”.
It is clear that in the field of criminal law the stay remedy is appropriate only in “the clearest of cases”: R. v. Power, [1994] 1 S.C.R. 601, at pages 612-616. At page 616, L’Heureux-Dubé J. stated for the majority:
To conclude that the situation “is tainted to such a degree” and that it amounts to one of the “clearest of cases”, as the abuse of process has been characterized by the jurisprudence, requires overwhelming evidence that the proceedings under scrutiny are unfair to the point that they are contrary to the interest of justice. As will be developed in more detail further in these reasons, the Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also to honour and express the community’s sense of justice. Accordingly, courts should be careful before they attempt to “second-guess” the prosecutor’s motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare. [Emphasis added.]
While these are not criminal cases, they do involve revocation of citizenship for alleged crimes committed by the respondents during the Second World War.
Like my colleagues, I am not persuaded that the present cases can properly be described as the “clearest of cases”. There is no evidence that either the Assistant Deputy Attorney General or the Chief Justice acted out of improper motives or in bad faith. However, the meeting and correspondence between the Assistant Deputy Attorney General and the Chief Justice, as did the meeting with the Associate Chief Justice, occurred ex parte, and, as I have stated, some statements found in the correspondence do raise a perception of interference with personal independence. While conceded by the appellant as “incorrect”, “improper” or “inappropriate”, I do not regard the situation as “so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed”, as Power, supra, requires for the “clearest of cases” in the absence of improper motives or bad faith. By early May 1996, as we have seen, it had become evident that the mid-May hearing would be devoted primarily to argument on the outstanding preliminary motions rather than the merits, priority no doubt to be given to the continuation of the argument commenced on December 12, 1995. Moreover, as the April 30, 1996 transcript and the record show, the respondents were themselves content with the Associate Chief Justice continuing to deal with the stay motions then pending. I respectfully agree with Marceau J.A. that any perception that the personal independence of the Associate Chief Justice was compromised should not be extended to that of every other member of the Trial Division. Until May 6, 1996, the Associate Chief Justice was the only judge of the Trial Division to have been involved in the cases. In my view, to borrow the words of Gonthier J. in Ruffo, supra, at page 328, the remaining judges of the Trial Division “have nothing to gain by not deciding as their consciences dictate and nothing to lose by doing justice”, either with respect to the preliminary matters or, if they are reached, the merits of the cases. Their judicial oaths require no less.[29]
I would dispose of the appeals in the manner proposed by Marceau J.A.
[1] S. 50(1) of the Federal Court Act reads thus:
50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
[2]Ss. 18 and 10(1) of the Citizenship Act provide 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.
…
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.
[3] That is, of course, in the absence of an order expanding the scope of the appeal or allowing the adducing of new evidence. The Court had to deal at the outset of the hearing with an application by two of the respondents for such an order, but it felt that what was sought to be adduced to the appeal case, namely documents, notes, minutes, memoranda and other information to which Justice Dubin had referred in his published report to the Minister of Justice, was not new evidence since it could have been sought and produced in first instance and, in any event, did not appear relevant in view of the issues properly before the Court.
[4] Valente v. The Queen et al., [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; R. v. Lippé, [1991] 2 S.C.R. 114.
[5] If I insist on this fact that the only evidence before the Trial Division was limited to the two letters, it is to conform myself strictly to the role of an appeal judge and the orders of the Court refusing to expand the scope of the appeal or to consider new evidence. But we now know that the added information that came out afterwards by way of the two well-publicized official reports mentioned above has simply confirmed, at least in the views of the authors of the reports, the points I just made as to what could be fairly and reasonably inferred from those letters.
[6] Supra, note 4.
[7] Entitled A Place Apart: Judicial Independence and Accountability in Canada.
[8] Courts of Justice Act, R.S.Q., c. T-16, s. 96.
[9] The reasonable observer that the Supreme Court defined as “an informed person, viewing the matter realistically and practically—and having thought the matter through”. Cf. Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394.
[10] R. v. O’Connor, [1995] 4 S.C.R. 411.
[11] As is noted in D. Sgayias, M. Kinnear, D. J. Rennie and B. J. Saunders, Federal Court Practice 1996 (Scarborough: Carswell, 1995), at p. 672:
The provisions of the Citizenship Act referred to in rule 920 have been renumbered in the Revised Statutes of Canada, 1985. Section 17 … is now section 18, section 9 is now section 10, and section 13(1) is now section 14(1).
[12] Appeal Book (Dueck), Vol. 1, at pp. 41-42.
[13] Id., at p. 80.
[14] Id., at p. 108. It appears that both May 15 and May 16, 1996 were in contemplation.
[15] Id., at pp. 109-110.
[16] Appeal Book (Tobiass), at pp. 22-23.
[17] Appeal Book (Dueck), Vol. 1, at p. 131.
[18] Appeal Book (Tobiass), at p. 83.
[19] Appeal Book (Dueck), Vol. 1, at p. 135.
[20] Id., at p. 136.
[21] Ibid.
[22] Transcript of the proceedings, April 30, 1996, Appeal Book (Dueck), Vol. II, at p. 262.
[23] Id., at pp. 263, 265, 267. Counsel for the respondent Tobiass did not express himself one way or the other at the hearing, but had earlier indicated that the Associate Chief Justice should be allowed to finish resolving the procedural motions. (Letter, 14 March 1996, G. J. Abols to the Chief Justice, Appeal Book (Tobiass), at p. 30.)
[24] Appeal Book (Tobiass), at p. 33.
[25] Transcript of the proceedings, June 12, 1996, Appeal Book Common Appendix II, Vol. II , at p. 165.
[26] Id., at p. 207.
[27] S. 5(1)(a) of the Federal Court Act, R.S.C., 1985, c. F-7.
[28] Id., s. 5(1)(b).
[29] See s. 9(1) of the Federal Court Act. If I had entertained doubt that they could act impartially, the provisions of ss. 6(3), 10(1) and (3) of the Federal Court Act would enable the appointment of a deputy judge for the purposes of these cases, at the request of the “senior judge who is in Canada and is able and willing to act”.