Tanasie Lazarov (Applicant)
v.
Secretary of State of Canada (Respondent)
Court of Appeal, Thurlow and Pratte JJ., Cho-
quette D.J.—Montreal, May 9, 30 and August 1,
1973.
Citizenship—Judicial review—Rejection of application by
Secretary of State on confidential police report—Right of
applicant to be heard—Audi alteram partem.
Pursuant to section 10(1) of the Canadian Citizenship Act,
the Secretary of State refused to grant applicant a certificate
of citizenship although the Citizenship Court had found him
a fit and proper person to be granted a certificate. In his
decision, the Secretary of State referred to a confidential
police report but did not disclose its contents. Applicant
applied to set the decision aside.
Held, the decision of the Secretary of State should be
referred back to him for reconsideration on the basis that
the audi alteram partem rule was applicable with respect to
any matter in the confidential report referred to in his
decision upon which his further decision might be based and
for redetermination after the applicant had been afforded an
opportunity to be heard.
Dawhopoluk v. Martin [1972] 1 O.R. 311, disapproved;
Durayappah v. Fernando [1967] 2 A.C. 337; Reg. v.
Gaming Board, Ex p. Benaim (C.A.) [1970] 2 W.L.R.
1009; In re H.K. [1967] 2 Q.B. 617, discussed.
JUDICIAL review.
COUNSEL:
A. H. J. Zaitlin, Q.C., for applicant.
Alain Nadon for respondent.
SOLICITORS :
A. H. J. Zaitlin, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent.
THURLOW J.—This is an application under
section 28 of the Federal Court Act to review
and set aside a decision of the Secretary of
State refusing to grant to the applicant a certifi
cate of citizenship under the Canadian Citizen
ship Act.
The particular provision of the Act under
which the applicant applied for a certificate was
subsection 10(1) which is one of several provi
sions of the Act which confer on the Minister
authority, in defined situations, to grant certifi
cates of citizenship. Some of these provisions
require the applicant to satisfy a court of certain
pertinent facts while others leave it to the Min
ister to determine the facts. In all cases, how
ever, the wording used by the statute to confer
the power is "The Minister may, in his discre
tion, grant a certificate, etc.".
Subsection 10(1) provides as follows:
10. (1) The Minister may, in his discretion, grant a certifi
cate of citizenship to any person who is not a Canadian
citizen and who makes application for that purpose and
satisfies the Court that
(a) he has attained the age of twenty-one years, or he is
the spouse of and resides in Canada with a Canadian
citizen;
(b) he has resided in Canada for at least twelve of the
eighteen months immediately preceding the date of his
application;
(c) the applicant has
(i) been lawfully admitted to Canada for permanent
residence and has, since such admission, resided in
Canada for at least five of the eight years immediately
preceding the date of application, but for the purpose of
this subparagraph, each full year of residence in Canada
by the applicant prior to his lawful admission to Canada
for permanent residence is deemed to be one-half year
of residence in Canada within the eight-year period
referred to in this subparagraph,
(ii) served outside of Canada in the armed forces of
Canada in a war in which Canada was or is engaged or
in connection with any action taken by Canada under
the United Nations Charter, the North Atlantic Treaty
or other similar instrument for collective defence that
may be entered into by Canada,
(iii) been lawfully admitted to Canada for permanent
residence and is the wife of a Canadian citizen, or
(iv) had a place of domicile in Canada for at least
twenty years immediately before the 1st day of January
1947 and was not, on that date, under order of
deportation;
(d) he is of good character and not under order of
deportation;
(e) he has an adequate knowledge of either the English or
French language, or, if he has not such an adequate
knowledge,
(i) he was forty years of age or more at the time of his
lawful admission to Canada for permanent residence
and has resided continuously in Canada for more than
ten years,
(ii) he was less than forty years of age at the time of his
lawful admission to Canada for permanent residence
and has resided continuously in Canada for more than
twenty years, or
(iii) he is the spouse, the widow or the widower of a
Canadian citizen;
(f) he' has an adequate knowledge of the responsibilities
and privileges of Canadian citizenship and intends to
comply with the oath of allegiance set forth in Schedule
II; and
(g) he intends to have his place of domicile permanently
in Canada.
In the present case the applicant, a citizen of
Rumania who was lawfully admitted to Canada
as a landed immigrant in 1937 and who has
resided and been domiciled in Canada contin
uously since that time, applied to the Citizen
ship Court in April 1972 and, notwithstanding
the disclosure of a record of a number of con
victions for criminal offences committed in
Canada between 1945 and 1955, succeeded in
satisfying the Court on the matters mentioned in
paragraphs (a) to (g) inclusive of section 10(1).
The Court went on to find in the terms of the
Act and the form prescribed that the applicant
was a fit and proper person to be granted
Canadian citizenship. The Minister, however,
declined to grant him a certificate by a decision
expressed as follows:
Citizenship Application
Tanasie (Tony) Lazarov
I have reviewed this, the third application for citizenship
of Tanasie Lazarov. In the light of confidential information
recently provided by the Royal Canadian Mounted Police I
am, pursuant to the discretion vested in me under the
Canadian Citizenship Act, rejecting this application.
It is agreed that this decision was taken with
out the applicant having been given an opportu
nity to be heard in respect thereof.
I should note at this point that the agreed
statement of facts recites more convictions than
the applicant's application, including one in
1959, but no point was made of this by counsel
and it was not suggested that the decision
turned on it.
The first submission put forward by counsel
on behalf of the applicant was that the findings
of the Citizenship Court on the matters referred
to in paragraphs (a) to (g) inclusive of section
10(1) and the finding that the applicant is a fit
and proper person to be granted Canadian citi
zenship are final and binding on the Minister,
that while the Minister has the right to consider
the application from the point of view of mat
ters of government policy he has no authority or
right to review findings made by the Court or to
adopt inconsistent findings on such matters, that
if the Minister or the police had information
indicating that the applicant was not a fit and
proper person to be granted citizenship, such
information ought to have been put before the
Cit; 'enship Court for evaluation and that the
Mis ister was without jurisdiction or authority to
re-evaluate the evidence concerning the fitness
of the applicant to be granted citizenship or to
substitute his own opinion for that of the Court.
The question of the extent of the right of the
Minister to disregard the findings of the Citizen
ship Court on the specific matters referred to in
paragraphs (a) to (g) inclusive of section 10(1)
and to reach his own conclusions on such mat
ters is a substantial one but I do not think it
arises or requires decision on the material
before the Court in the present case. In present
ing the point counsel referred particularly to the
Court's finding that the applicant was of good
character, within the meaning of paragraph (d),
and the finding that he had adequate knowledge
of the responsibilities and privileges of Canadi-
an citizenship and intended to comply with the
oath of allegiance, within the meaning of para
graph (f), as well as to the Court's conclusion
that the applicant was a fit and proper person to
be granted Canadian citizenship and sought to
treat the Minister's decision as being in some
way a reversal of these findings. This may con
ceivably be true, or it may be that without
implying a reversal of the Court's findings the
Minister simply may have had reservations
about them based on a reasonable suspicion that
the applicant was not a fit and proper person to
be granted citizenship either because of what
had been disclosed to the Court or on the basis
of other information which had reached him.
The decision, however, cannot be read as stat
ing any more than it does state and it is idle to
speculate on what it may imply. It refers to a
confidential police report the contents of which
are not stated in the decision and are not before
the Court. The report may be concerned entirely
with matters quite unrelated to those upon
which the Citizenship Court has passed and
without it or its contents it is not possible, as I
see it, to affirm that there is in the decision
anything which is necessarily inconsistent with
the findings of the Citizenship Court.
I should add that in the course of argument
counsel asked that the Court order production
of the report but after some discussion as to
why it had been omitted from the material set
tled by the order for directions he expressed
himself as content that the application be decid
ed on the material as so settled.
The other principal submission put forward
by counsel, though put in several different
ways, was that the Minister was bound to
observe the audi alteram partem rule with
respect to the contents of the police report in
question before rejecting the application on the
basis of iY.
The answer of counsel for the Minister to this
submission was that as the statute provides nei
ther any norm or principle nor any form of
procedure for the exercise of the Minister's
discretion the function must be regarded as
purely administrative in character and that since
the applicant has no absolute right to a certifi
cate and no existing right of his is being affected
or interfered with by the decision the audi
alteram partem rule does not apply.
In support of this position reference was
made to Dawhopoluk v. Martin [1972] 1 O.R.
311 where the same question arose, though in a
different way, on the same statutory provision.
In that case Addy J. struck out a statement of
claim which included inter alia a claim for "a
declaration that the defendants grant the plain-
tiff a full and fair hearing including being.
advised of the allegations against him and the
cross-examination of witnesses with respect to
the evidence if any under which the ministerial
discretion is being exercised." The reason or
reasons for the refusal of the Minister to grant a
certificate had not been communicated to the
plaintiff although attempts had been made by
him from time to time to find out why he had
been refused citizenship.
The position taken by the Minister that the
audi alteram partem rule did not apply was
upheld by Addy J. who held that section 10
clearly places upon the Minister a discretion to
make a policy decision and that no judicial
process or hearing is required or provided for,
that the Minister cannot be compelled in cases
such as this, when the discretion relates to the
creation of a right, to disclose to the Court the
grounds for his official action and that this type
of ministerial discretion is clearly to be distin
guished from cases where a discretion has been
granted by statute involving the adjudication
upon or the determination or abrogation of
established rights.
This reasoning is broad enough to cover the
present case as well but there is at least this
distinction between the two that in the present
case the decision of the Minister shows on its
face that it is based on information that was not
before the Citizenship Court.
With respect I am unable to conclude that the
discretion conferred by section 10 is merely to
make a policy decision or that the distinction
between a discretion to deal with established
rights and one which is concerned with the
granting of rights makes any critical difference.
As I see it what must be determined is whether
the function of the Minister under the relevant
subsection, which is plainly one of an adminis
trative nature, is nevertheless one that is
required to be exercised on a judicial or a quasi-
judicial basis. For this purpose there is no single
or sure test when the statute which creates the
power does not expressly settle the point but a
number of cases throw light on the problem and
point, perhaps somewhat uncertainly, to a solu
tion of it.
In Durayappah v. Fernando [1967] 2 A.C.
337 the problem is discussed by Lord Upjohn
as follows at page 348:
Upon the question of audi alteram partem the Supreme
Court followed and agreed with the earlier decision of
Sugathadasa v. Jayasinghe (1958) 59 N.L.R. 457, a decision
of three judges of the Supreme Court upon the same section
and upon the same issue, namely, whether a council was not
competent to perform its duties. That decision laid down
as a general rule that words such as "where it appears to
..." or "if it appears to the satisfaction of ..." or "if the
... considers it expedient that ..." or "if the ... is
satisfied that ..." standing by themselves without other
words or circumstances of qualification, exclude a duty to
act judicially."
Their Lordships disagree with this approach. These vari
ous formulae are introductory of the matter to be considered
and are given little guidance upon the question of audi
alteram partem. The statute can make itself clear upon this
point and if it does cadit quaestio. If it does not then the
principle stated by Byles J. in Cooper v. Wandsworth Board
of Works (1863) 14 C.B.N.S. 180, 194 must be applied. He
said:
A long course of decisions, beginning with Dr. Bentley's
case, (1723) 1 Stra. 557; 8 Mod. Rep. 148 and ending with
some very recent cases, establish, that, although there are
no positive words in the statute requiring that the party
shall be heard, yet the justice of the common law will
supply the omission of the legislature.
If the law were otherwise then such cases as Capel v.
Child (1832) 2 Cromp. & Jer. 558 where the words are in
fact very similar to the words of section 277, must have
been differently decided. That case is in fact an important
landmark in the history of the development of the principle
audi alteram partem. The solution to this case is not to be
found merely upon a consideration of the opening words of
section 277. A deeper investigation is necessary. Their
Lordships were of course referred to the recent case of
Ridge v. Baldwin [1963] 2 All E.R. 66, H.L. (E) where this
principle was very closely and carefully examined. In that
case no attempt was made to give an exhaustive classifica
tion of the cases where the principle audi alteram partem
should be applied. In their Lordships' opinion it would be
wrong to do so. Outside well known cases such as dismissal
from office, deprivation of property and expulsion from
clubs, there is a vast area where the principle can only be
applied upon most general considerations. For example, as
Lord Reid [1964] A.C. 40, 76, when examining Rex v.
Electricity Commissioners 39 T.L.R. 715, C.A. pointed out,
Bankes L.J. [1924] 1 K.B. 171, 198 inferred the judicial
element from the nature of the power and Atkin L.J. did the
same. Pausing there, however, it should not be assumed that
their Lordships necessarily agree with Lord Reid's analysis
of that case or with his criticism of Nakuda Ali v. Jayaratne
)6 T.L.R. (Pt. 2) 214 P.C. Outside the well-known classes of
ases, no general rule can be laid down as to the application
of the general principle in addition to the language of the
provision. In their Lordships' opinion there are three mat
ters which must always be borne in mind when considering
whether the principle should be applied or not. These three
matters are: first, what is the nature of the property, the
office held, status enjoyed or services to be performed by
the complainant of injustice. Secondly, in what circum
stances or upon what occasions is the person claiming to be
entitled to exercise the measure of control entitled to inter
vene. Thirdly, when a right to intervene is proved, what
sanctions in fact is the latter entitled to impose upon the
other. It is only upon a consideration of all these matters
that the question of the application of the principle can
properly be determined. Their Lordships therefore proceed
to examine the facts of this case upon these considerations.
In Reg. v. Gaming Board, Ex p. Benaim
(C.A.) [1970] 2 W.L.R. 1009, the question was
whether a Board, whose consent was necessary
before a party might apply to justices for a
gaming licence, was bound to observe the prin
ciples of natural justice when dealing with an
application for its consent. Lord Denning M.R.,
with whom the other members of the Court of
Appeal agreed put the matter thus at page 1016:
Mr. Hogg put his case, I think, too high. It is an error to
regard Crockford's as having any right of which they are
being deprived. They have not had in the past, and they
have not now, any right to play these games of chance—
roulette, chemin -de -fer, baccarat and the like—for their own
profit. What they are really seeking is a privilege—almost, I
• ight say, a franchise—to carry on gaming for profit, a thing
,.ever hitherto allowed in this country. It is for them to show
that they are fit to be trusted with it.
If Mr. Hogg went too far on his side, I think Mr. Kidwell
went too far on the other. He submitted that the Gaming
Board are free to grant or refuse a certificate as they please.
They are not bound, he says, to obey the rules of natural
justice any more than any other executive body, such as, I
suppose, the Board of Trade, which grants industrial de
velopment certificates, or the Television Authority, which
awards television programme contracts. I cannot accept this
view. I think the Gaming Board are bound to observe the
rules of natural justice. The question is: What are those
rules?
It is not possible to lay down rigid rules as to when the
principles of natural justice are to apply: nor as to their
scope and extent. Everything depends on the subject-
matter: see what Tucker L.J. said in Russell v. Norfolk
(Duke of) [1949] 1 All E.R. 109, 118 and Lord Upjohn in
Durayappah v. Fernando [1967] 2 A.C. 337, 349. At one
time it was said that the principles only apply to judicial
proceedings and not to administrative proceedings. That
heresy was scotched in Ridge v. Baldwin [1964] A.C. 40. At
another time it was said that the principles do not apply to
the grant or revocation of licences. That too is wrong. Reg.
v. Metropolitan Police Commissioner, Ex parte Parker
[1953] 1 W.L.R. 1150 and Nakkuda Ali v. Jayaratne [1951]
A.C. 66 are no longer authority for any such proposition.
See what Lord Reid and Lord Hodson said about them in
Ridge v. Baldwin [1964] A.C. 40, 77-79, 133.
So let us sheer away from those distinctions and consider
the task of this Gaming Board and what they should do. The
best guidance is, I think, to be found by reference to the
cases of immigrants. They have no right to come in, but they
have a right to be heard. The principle in that regard was
well laid down by Lord Parker C.J. in In re H.K (An infant)
[1967] 2 Q.B. 617. He said at p. 630:
... even if an immigration officer is not in a judicial or
quasi-judicial capacity, he must at any rate give the immi
grant an opportunity of satisfying him of the matters in
the subsection, and for that purpose let the immigrant
know what his immediate impression is so that the immi
grant can disabuse him. That is not, as I see it, a question
of acting or being required to act judicially, but of being
required to act fairly.
Those words seem to me to apply to the Gaming Board.
The statute says in terms that in determining whether to
grant a certificate, the board "shall have regard only" to the
matters specified. It follows, I think, that the board have a
duty to act fairly. They must give the applicant an opportu
nity of satisfying them of the matters specified in the
subsection. They must let him know what their impressions
are so that he can disabuse them. But I do not think that
they need quote chapter and verse against him as if they
were dismissing him from an office, as in Ridge v. Baldwin
[1964] A.C. 40; or depriving him of his property, as in
Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S.
180. After all, they are not charging him with doing anything
wrong. They are simply inquiring as to his capability and
diligence and are having regard to his character, reputation
and financial standing. They are there to protect the public
interest, to see that persons running the gaming clubs are fit
to be trusted.
Seeing the evils that have led to this legislation, the board
can and should investigate the credentials of those who
make application to them. They can and should receive
information from the police in this country or abroad who
know something of them. They can, and should, receive
information from any other reliable source. Much of it will
be confidential. But that does not mean that the applicants
are not to be given a chance of answering it. They must be
given the chance, subject to this qualification: I do not think
they need tell the applicant the source of their information,
if that would put their informant in peril or otherwise be
contrary to the public interest. Even in a criminal trial, a
witness cannot be asked who is his informer. The reason
was well given by Lord Eyre C.J. in Hardy's case [Rex v.
Hardy] 24 State Trials 199, 808:
... there is a rule which has universally obtained on
account of its importance to the public for the detection
of crimes, that those persons who are the channel by
means of which that detection is made, should not be
unnecessarily disclosed.
And Buller J. added, at p. 818: "... if you call for the name
of the informer in such cases, no man will make a discovery,
and public justice will be defeated." That rule was emphati
cally reaffirmed in Attorney-General v. Briant (1846) 15 M.
& W. 169 and Marks v. Beyfus (1890) 25 Q.B.D. 494. That
reasoning applies with equal force to the inquiries made by
the Gaming Board. That board was set up by Parliament to
cope with disreputable gaming clubs and to bring them
under control. By bitter experience it was learned that these
clubs had a close connection with organised crime, often
violent crime, with protection rackets and with strong-arm
methods. If the Gaming Board were bound to disclose their
sources of information, no one would "tell" on those clubs,
for fear of reprisals. Likewise with the details of the infor
mation. If the board were bound to disclose every detail,
that might itself give the informer away and put him in peril.
But, without disclosing every detail, I should have thought
that the board ought in every case to be able to give to the
applicant sufficient indication of the objections raised
against him such as to enable him to answer them. That is
only fair. And the board must at all costs be fair. If they are
not, these courts will not hesitate to interfere.
In In re H.K. (An Infant) [1967] 2 Q.B. 617,
to which Lord Denning referred, Salmon L.J.
said at pages 632 and 633:
I have no doubt at all that in exercising his powers under
that section, the immigration officer is obliged to act in
accordance with the principles of natural justice. That does
not of course mean that he has to adopt judicial procedures
or hold a formal inquiry, still less that he has to hold
anything in the nature of a trial, but he must act, as Lord
Parker C.J. has said, fairly in accordance with the ordinary
principles of natural justice. If, for example, and this I am
sure would never arise, it could be shown that when he
made an order refusing admission he was biased or had
acted capriciously or dishonestly, this court would have
power to intervene by the prerogative writ. There are, as my
Lord has said, a good many cases in which the view has
been expressed that unless a person exercising a power is
acting in a judicial or quasi-judicial capacity the courts
cannot intervene. Of course, an immigration officer is acting
in an administrative rather than in a judicial capacity. What,
however, is a quasi-judicial capacity has, so far as I know,
never been exhaustively defined. It seems to me to cover at
any rate a case where the circumstances in which a person
who is called upon to exercise a statutory power and make a
decision affecting basic rights of others are such that the law
impliedly imposes upon him a duty to act fairly. When
Parliament passed the Commonwealth Immigrants Act,
1962, it deprived Commonwealth citizens of their right of
unrestricted entry into the United Kingdom. It laid down
conditions under which they might enter and left it to the
immigration officers to decide whether such conditions
existed. Their decision is of vital importance to the immi
grants since their whole future may depend upon it. In my
judgment it is implicit in the statute that the authorities in
exercising these powers and making decisions must act in
accordance with the principles of natural justice.
I turn now to the considerations referred to
by Lord Upjohn in Durayappah v. Fernando
and the provisions of the Citizenship Act. It is, I
think, clear that the present case is outside what
are referred to as the well-known classes of
cases, that is to say, dismissals from office,
deprivation of property and expulsion from
clubs, and falls within the vast area within
which the principle can only be applied upon
most general considerations and wherein no
ground rule for the application of the principle
has been laid down "in addition to" (which I
interpret as meaning "other than") the language
of the relevant provisions.
Adverting to the first of the three general
considerations, the nature of the subject-matter,
there is, as I see it, no reason to doubt that it is
of great importance to a person who has lived in
this country for a long time to have the advan
tages and status of Canadian citizenship and to
have open to him a procedure for acquiring it.
That, moreover, appears to me to be the pur
pose of the several provisions of the statute
with respect to applications to be made by per
sons who are not Canadian citizens. In all of
these several provisions the grant is in the dis
cretion of the Minister but as already pointed
out in many of them the facts are determinable
not by the Citizenship Court but by the Minis-
ter. In these instances the whole question is thus
for him to decide and it seems to me that the
right to a hearing for such applicants with
respect to all the problems arising upon their
applications is clearly to be implied. It would
therefore, as I see it, involve no great departure
from a course required in such instances nor
would it do violence to the language of subsec
tion 10(1) if a right to answer were implied in
respect of facts or information considered to
warrant refusal of the application under that
provision and particularly so in the case of
matters upon which the Citizenship Court has
not been called upon to pass. In this connection
it may be noted that with respect to matters
upon which the Citizenship Court is concerned
to pass provision has been made in Regulation
12' 1 that an application may be referred back to
the Court for clarification of any matter remain
ing in doubt or for further evidence. The same
regulation requires the applicant to furnish the
Minister with any proof or to clarify any matter
as the Minister may require.
Leaving aside any question of declining the
grant of certificates to particular classes of per
sons on grounds of broad general policy, which
as I see it, it is not necessary to consider, it
seems to me that whenever the reason for con
templating refusal of an application is one that
is peculiar to the particular applicant the nature
of citizenship and its importance to the individu
al are such that the applicant ought at least to
have an opportunity of some kind and at some
stage of the proceedings to dispute its existence.
Upon the second of the three general consid
erations, in what circumstances the discretion
arises, it is apparent that the discretion con
ferred on the Minister arises whenever an
application comes before him and that it is
unfettered in the sense that no specific direc
tions are found in the statute as to the basis on
which certificates are to be granted or refused
to persons who have the prescribed qualifica
tions. It would be difficult to conceive of a
broader discretion but even it, as I see it, is
subject to the precept expressed by Lord Hals-
bury L.C. in Sharp v. Wakefield [1891] A.C. 173
when he said at page 179:
An extensive power is confided to the justices in their
capacity as justices to be exercised judicially; and "discre-
tion" means when it is said that something is to be done
within the discretion of the authorities that that something is
to be done according to the rules of reason and justice, not
according to private opinion: Rooke's Case 5 Rep. 100, a;
according to law, and not humour. It is to be, not arbitrary,
vague, and fanciful, but legal and regular. And it must be
exercised within the limit, to which an honest man com
petent to the discharge of his office ought to confine him
self: Wilson v. Rasta!? 4 T.R. at p. 757.
and by Lord Greene M.R. in Associated Provin
cial Picture Houses Ltd. v. Wednesbury Cor
poration [1948] 1 K.B. 223 when he said at
page 229:
. a person entrusted with a discretion must, so to speak,
direct himself properly in law. He must call his own atten
tion to the matters which he is bound to consider. He must
exclude from his consideration matters which are irrelevant
to what he has to consider.
See also Padfield v. Minister of Agriculture
[1968] A.C. 997 at p. 1007. However, having
said this with respect to the nature of the discre
tion all that I can see in the circumstances in
which it arises which appears to bear on the
problem of whether it must be exercised on a
judicial or a quasi-judicial basis is that the Min
ister is to consider the application of a person
who applies on a form prescribed by him and
which presumably gives the information he
requires from the applicant and from the Citi
zenship Court and that this suggests that if the
Minister is to consider other facts the applicant
should have an opportunity to be heard with
respect to them. Nothing precisely or nearly
comparable to what was considered on this
point in Durayappah v. Fernando appears to be
present.
On the question of the sanction there is little
to add to what I have already said. It is not a
case of depriving a person of his property and it
is true that the applicant can apply again after
two years, but the status of citizenship carries
with it rights and advantages and to refuse the
application of a person to whom it would other
wise be granted on the basis of matters of which
he is not apprised and which he is given no
opportunity to dispute is shocking to one's
sense of justice, even though he may lawfully
apply again after a comparatively short time. It
suggests that the applicant is not being fairly
dealt with and that fairness demands that he at
least be afforded an opportunity to state his
position on them.
As a further general consideration there
appears to me to be no persuasive reason why
the rule should not be applicable in a matter of
this kind. The function which the Minister is
called upon to perform is undoubtedly a sensi
tive one involving responsibility to the Canadian
public for withholding the grant of citizenship to
aliens who are for one reason or another not
desirable as citizens and his task should not be
made any more difficult than it is. On the other
hand citizenship is not a condition of the
individual's right to live in Canada and the task
of determining when to grant and when to
refuse it does not seem to be more sensitive or
difficult than that of the Gaming Board in the
case referred to, to which it bears some consid
erable similarity. Of the two kinds of situations
I should think the reasons why the law should
require compliance with the principles of natu
ral justice are at least as strong in a citizenship
case as in one of a person seeking a licence to
operate a gambling establishment.
In my opinion therefore the rule audi alteram
partem applies whenever the Minister proposes
to exercise his discretion to refuse an applica
tion on the basis of facts pertaining to the
particular applicant or his application and where
he has not already had an opportunity in the
course of the proceedings before the Citizenship
Court he must be afforded a fair opportunity in
one way or another of stating his position with
respect to any matters which in the absence of
refutation or explanation would lead to the
rejection of his application. That is not to say
that a confidential report or its contents need be
disclosed to him but the pertinent allegations
which if undenied or unresolved would lead to
rejection of his application must, as I see it, be
made known to him to an extent sufficient to
enable him to respond to them and he must have
a fair opportunity to dispute or explain them.
I would set aside the decision of the Minister
and refer the matter back to him for reconsider
ation on the basis that the audi alteram partem
rule is applicable with respect to any matter in
the confidential report referred to in his deci
sion of November 23, 1972 upon which his
further decision may be based and for redeter-
mination after the applicant has been afforded
an opportunity to respond to or state his posi
tion on such matter.
* * *
PRATTE J. and CHOQUETTE D.J. concurred.
12. Where a Court has endorsed on the form provided
by the Minister that it is satisfied that a person referred to in
subsection (1) of section 9 meets the requirements of sub
section (1) of section 10 of the Act
(a) the Minister may direct that the application be
referred back to the Court for the clarification of any
matter remaining in doubt or requiring further evidence;
and
(b) the person shall furnish the Minister with any proof or
clarify any matter that the Minister may require.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.