T-1188-83
Luis Ernesto Reyes (Plaintiff)
v.
Attorney General of Canada and Secretary of
State and Registrar of Citizenship (Defendants)
Trial Division, Cattanach J.—Ottawa, June 21
and August 4, 1983.
Citizenship — Judicial review — Equitable remedies —
Declarations — Plaintiff a permanent resident — Order in
Council under s. 18(1) of Citizenship Act, declaring grant of
citizenship prejudicial to security and contrary to public order
— Citizenship application denied — Plaintiff not informed of
allegations against him or given opportunity , to respond
Plaintiff seeking declaration Order in Council invalid —
Motion to strike — Defendants accepting facts alleged — No
affidavit required for motion under R. 419(1)(a) or
419(1)(b),(c),(d),(f) — Whether ultimate issues should be
decided on motion to strike — Issues of law involving inter
pretation of Citizenship Act and Charter of Rights — Disposi
tion requiring no additional pleadings or evidence — Proper
subject-matters on motion to strike — Whether Order in
Council reviewable — Judicial intervention proper if Order in
Council exceeds authority — Governor in Council must
comply with condition precedent to exercise of power —
Whether legislature intended duty of fairness — Must look to
statute to see whether and to what extent audi alteram partem
applies: The Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [19801 2 S.C.R. 735 — Guides to legislative
intent — Examination of ss. 5(1)(e), 18 — Discretion under s.
18 not subject to duty of fairness — Person not threat to
security or public order until so declared — Existence of
threat not condition precedent to exercise of Governor in
Council's authority — Conclusive proof of threat not required
— No obligation for Governor in Council to invite refutation
— No express or implied limitations on Governor in Council's
discretion under s. 18 — Nature of body empowered — Apex
of executive entrusted with matters of policy and expediency,
which do not usually involve limitations — National security
involved where s. 18(1) applies — Whether s. 18(1) contrary to
Charter Ss. 2, 7, 12 of Charter having predecessors in Bill
of Rights — S. 2 freedoms no different from those always
enjoyed in Canada — Order in Council not affecting plaintiffs
ability to enjoy rights under ss. 2 and 7 of Charter in Canada
— Deprivation of s. 7 rights outside Canada not matter of
Canadian jurisdiction or control — Citizenship is privilege
state may grant or withhold — Privilege a reasonable, justifi
able limitation as per s. 1 of Charter — Statute may dictate
circumstances of grant — Making of Order in Council not
"punishment" as per Charter, s. 12 — Whether "cruel and
unusual" to be read disjunctively or conjunctively — Order in
Council leaves plaintiff free to remain and enjoy life in
Canada — Order in Council not "cruel and unusual treat
ment" — Reasonableness of right to make a s. 18(1) order is
self-evident and demonstrably justified — Statement of claim
struck and action dismissed — Citizenship Act, S.C. 1974-75-
76, c. 108, ss. 5(1), 18 — Canadian Citizenship Act, R.S.C.
1970, c. C-19, s. 10(1) — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2, 7, 12 —
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C. 1970,
Appendix III], ss. 1, 2(b) — Federal Court Rules 319(2),
419(1)(a),(b),(c),(d),(1), 419(2), 603.
Constitutional law — Charter of Rights — Whether s.
18(1), Citizenship Act contrary to Charter — S. 2 freedoms
always enjoyed in Canada — Order in Council under s. 18(1)
not affecting plaintiff's ability to enjoy ss. 2 and 7 Charter
rights — Deprivation of s. 7 rights outside Canada not matter
within Canadian jurisdiction — Privilege of citizenship
reasonable limitation under Charter, s. 1 — Order in Council
not "punishment" under Charter, s. 12 — Not "cruel and
unusual treatment" — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.),. ss. 1, 2, 7, 12 —
Citizenship Act, S.C. 1974-75-76, c. 108, s. 18.
Practice — Motion to strike pleadings — Action for decla
ration Order in Council under s. 18(1), Citizenship Act, that
prejudicial to Canada to grant plaintiff citizenship invalid as
contrary to duty of fairness and Charter — Whether reason
able cause of action — Whether ultimate issues should be
decided on motion to strike — Issues of law involving inter
pretation of Citizenship Act and Charter — No additional
pleadings or evidence required — No affidavit in support of
motion required as defendants accept facts alleged in state
ment of claim — Statement of claim struck and action dis
missed — Federal Court Rule 419 — Citizenship Act, S.C.
1974-75-76, c. 108, s. 18.
The plaintiff, a permanent resident of Canada, applied for
Canadian citizenship. Despite the passage of considerable time,
no ruling on the application was forthcoming, so the plaintiff
applied for an order of mandamus. Also, his solicitor requested
that, if a declaration under subsection 18(1) of the Citizenship
Act ("the Act") were being considered, the plaintiff be
informed of the allegations against him and be given the
opportunity to refute them. Prior to the disposition of the
mandamus application, an Order in Council under subsection
18(1) was issued by the Governor in Council, on the recommen
dation of the Secretary of State. This Order declared that it
would be prejudicial to the security of Canada and contrary to
public order in Canada to grant citizenship to the plaintiff. The
plaintiff had not been informed of the allegations against him
and had not been given an opportunity to refute them. He
applied to the Trial Division for a declaration that the Order in
Council was invalid. The defendants then applied under Rule
419(1)(a), for an order striking out the statement of claim and
dismissing the action, on the ground that no reasonable cause of
action was disclosed. Other paragraphs of Rule 419(1) were
also invoked. The defendants accepted the facts alleged in the
plaintiff's statement of claim. They did not file an affidavit in
support of their motion.
Held, (I) No affidavit is required in support of the defend
ants' motion. By virtue of Rule 419(2), no evidence is admis
sible in an application under Rule 419(1 )(a). The same is not
true with respect to an application under the other paragraphs
of Rule 419(1); however, since the defendants accept the facts
alleged, no affidavit is required in this case.
(2) The issues raised by the statement of claim concern the
interpretation of the Act and the Charter of Rights. They are
entirely issues of law. No additional pleadings or evidence is
required for the disposition of any of the issues. Hence it is
proper for the Court to address them on a motion to strike.
(3) Orders in Council are reviewable upon the same condi
tions as are statutes. Judicial intervention is proper if the Order
exceeds the authority pursuant to which it is made. In exercis
ing a power, the Governor in Council must comply with any
conditions precedent which the governing statute imposes.
Here, the plaintiff contends that the Governor in Council was
subject to a duty of fairness—more specifically, the duty audi
alteram partem—and that compliance therewith was a condi
tion precedent to the making of an Order in Council under
subsection 18(1); however, as the case of The Attorney General
of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R.
735, establishes, one must look to the statute to see to what
extent the rule audi alteram partem is intended to apply, if at
all. The Inuit Tapirisat case also sets forth a number of useful
guides to the interpretation of the legislative intent. An exami
nation of the language of sections 5(1)(e) and 18 of the Act
indicates that there is indeed no condition precedent imposed
upon the exercise of the Governor in Council's discretion to
make a declaration under subsection 18(l). Under the latter
provision, a person does not become a threat to security or
public order until so declared, and thus the existence of such a
threat is not a condition precedent to the exercise of the
authority conferred by the subsection. It follows that the exist
ence of such a threat need not be conclusively proved. Accord
ingly, the Governor in Council is under no obligation to invite
refutation of the allegations against the person concerned.
There are no limitations imposed on the Governor in Council's
discretion by section 18, either expressly or by implication.
Other considerations also conduce to this conclusion. The body
on which the subsection 18(1) power is conferred is the apex of
the executive. A body of this nature is entrusted with matters of
policy and expediency, and Parliament usually does not impose
limitations in respect of such matters. Furthermore, if subsec
tion 18(1) is called into play, the case is one of national
security. Where national security is involved, other concerns
may have to be subordinated.
(4) Subsection 18(1) is not contrary to any of sections 2, 7
and 12 of the Charter of Rights. Those provisions of the
Charter all have predecessors in the Canadian Bill of Rights.
The freedoms listed in section 2 are no different from those
which were enjoyed in Canada prior to the reduction of such
freedoms to writing. The Order in Council does not affect the
plaintiff's right to remain in Canada, and thus does not affect
his ability to enjoy section, 2 and section 7 rights in Canada.
Any deprivation of section 7 rights outside Canada is a matter
beyond Canadian jurisdiction and control. Citizenship is a
privilege which the state may either grant or withhold. This
privilege is a reasonable limitation, justifiable in a free and
democratic society, as per section 1 of the Charter. It is
therefore permissible for the Act to stipulate circumstances in
which citizenship will or will not be granted. The issuance of
the Order in Council was not a subjecting of the plaintiff to
"punishment", as referred to in section 12 of the Charter. At
worst, the plaintiff was subjected to "treatment"; but, since he
remained free to live in Canada and enjoy life here, there was
no "cruel and unusual" treatment. Moreover, the reasonable
ness of the right of a free and democratic state to declare that a
grant of citizenship would threaten security and public order is
self-evident, and hence demonstrably justified.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
The Attorney General of Canada v. Inuit Tapirisat of
Canada et al., [ 1980] 2 S.C.R. 735.
APPLIED:
Regina v. Secretary of State for Home Affairs, Ex parte
Hosenball, [1977] 1 W.L.R. 766 (Eng. C.A.): In re
Gittens, [1983] I F.C. 152; 68 C.C.C. (2d) 438 (T.D.).
DISTINGUISHED:
Lazarov v. Secretary of State of Canada, [1973] F.C.
927; 39 D.L.R. (3d) 738 (C.A.).
COUNSEL:
M. Wolpert for plaintiff.
L. P. Chambers for defendants.
SOLICITORS:
M. Wolpert, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an application by way of
notice of motion, on behalf of the defendants, to
strike out the statement of claim herein and dis
miss the actions on the grounds that no reasonable
cause of action is disclosed against any of the
defendants, pursuant to Rule 419(1)(a), or in the
alternative to strike out the statement of claim and
dismiss the actions, as against the defendants the
Secretary of State and the Registrar of Citizen
ship, on the ground that no reasonable cause of
action is disclosed against either of them (in this
respect the relief sought is coincident with that
sought initially) and in addition thereto on the
grounds that to name them as defendants is scan
dalous, frivolous and vexatious, may prejudice,
embarrass and delay the fair trial of the action and
is an abuse of the process of the Court.
The alternative relief, in addition to the invoca
tion of Rule 419(1)(a), also invokes Rule
419(1)(b), which is that to name these two further
defendants is immaterial or redundant, as well as
(c), (d) and (f). The content of Rules 419(1)(c),
(d) and (f) are set forth as particulars in the notice
of motion, but this is not done with respect to Rule
419(1)(b). The reason, I suspect, that this was not
done is that the naming of the second and third
defendants is immaterial or redundant is obvious
from the citation of the Rule, but if that be so the
same expectation would also apply to Rules
419(1)(c), (d) and (f) except that there is a depar
ture in the notice of motion from the language of
Rules 419(1)(c) and (d), in that in those para
graphs the disjunctive "or" is used whereas in the
notice of motion the word "and" is used. Mayhap
it was intended to use "and" in a disjunctive,
rather than a conjunctive, sense.
By Rule 419(2), no evidence is admissible under
paragraph 419(1)(a). The reason is patent. The
statement of claim speaks for itself.
The same is not necessarily so with respect to
the remaining paragraphs of Rule 419(1).
Under Rule 319(2), a motion shall be supported
by an affidavit as to all facts on which the motion
is based that do not appear from the record.
The defendants accept the facts alleged in the
statement of claim, from which it follows that a
supporting affidavit is not required with respect to
the alternative relief sought on behalf of the
second and third-named defendants.
The relief sought in the plaintiff's statement of
claim is for a declaration that a declaration made
by the Governor in Council, P.C. 1982-2455, dated
August 13, 1982, pursuant to subsection 18(1) of
the Citizenship Act, S.C. 1974-75-76, c. 108, that
it would be prejudicial to the security of Canada
and contrary to public order in Canada to grant
citizenship to the plaintiff, is invalid and of no
effect on the grounds that:
(1) the plaintiff was not informed, prior to the
issuance of the Order in Council, of the sub
stance of the allegations against him which led
to its issuance, and failing to afford the plaintiff
an opportunity to reply thereto constituted a
breach of the duty of fairness incumbent on the
Governor in Council;
(2) that duty of fairness is an implied condition
precedent to the exercise of the authority under
subsection 18(1) of the statute, requiring that
the plaintiff be informed of the substance of
allegations against him and be afforded the
opportunity of replying thereto; and
(3) if no such condition precedent exists, then
subsection 18(1) is of no force or effect because
it is inconsistent with sections 2, 7 and 12 of the
Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.).
The factual allegations in the statement of
claim, which the defendants accept, may be suc
cinctly stated.
The plaintiff, who is not a Canadian citizen, was
admitted to Canada for permanent residence in
1974.
On May 3, 1977, the plaintiff applied for
Canadian citizenship.
That application did not come to fruition with
despatch, despite repeated enquiries and requests
by the plaintiff's solicitor to the Secretary of State
and the officials of the Citizenship Registration
Branch of the Department of the Secretary of
State.
On July 23, 1982, the plaintiff filed an originat
ing notice of motion returnable in Toronto,
Ontario, on August 18, 1982, seeking relief by way
of mandamus. (The proper form is by notice of
motion, not originating notice of motion: see Rule
603.)
On August 11, 1982, the plaintiffs solicitor
requested that, in the event of a declaration under
section 18(1) of the Citizenship Act being con
sidered, that the plaintiff be informed of allega
tions against him and that he be given the opportu
nity to refute them.
On August 13, 1982, an Order in Council, on
the recommendation of the Secretary of State,
issued pursuant to subsection 18(1) of the Citizen
ship Act, declaring that it would be prejudicial to
the security of Canada and contrary to the public
order of Canada to grant citizenship to the
plaintiff.
The Registrar of Citizenship, in response to the
plaintiffs notice of motion for mandamus, filed an
affidavit deposing that the plaintiff was the subject
of a declaration under subsection 18(1), appending
a certified copy of the Order in Council thereto,
and that further action on the plaintiff's applica
tion for citizenship would not be taken because, by
virtue of subsection 18(2), the application is
deemed to be not approved.
As I view the present application there are three
basic issues to be decided, in the following order:
(1) is it appropriate that the ultimate issue to be
decided should be decided at this stage and by
this means; and if so,
(2) should the rules of fairness be read into
subsection 18(1) of the Citizenship Act; and if
not,
(3) is subsection 18(1) of no force or effect as
inconsistent with sections 2, 7 and 12 of the
Canadian Charter of Rights and Freedoms?
With respect to the initial issue to be decided as
outlined above, the matter has been the subject of
extensive review by the Supreme Court of Canada
in The Attorney General of Canada v. Inuit
Tapirisat of Canada et al., [1980] 2 S.C.R. 735.
The appeal before the Supreme Court related to
the propriety of the disposition by my brother
Marceau of an application made in the Federal
Court, Trial Division, to strike out the statement
of claim as disclosing no reasonable cause of
action.
The Canadian Radio-television and Telecom
munications Commission (CRTC) granted an
increase of telephone rates in the Northwest Terri
tories. Inuit Tapirisat and its co-plaintiff appealed
the CRTC decision pursuant to subsection 64(1)
of the National Transportation Act, R.S.C. 1970,
c. N-17 [as am. by R.S.C. 1970, c. 10 (2nd Supp.),
s. 65 (Item 32)] ranged under the heading Review
and Appeal, to which resort may be made in aid of
interpretation. The (plaintiffs') respondents' peti
tions were denied by the Governor in Council.
Thereupon the respondents attacked the decision
of the Governor in Council alleging that they had
not been given a hearing in accordance with the
principles of natural justice. Mr. Justice Marceau
struck out the statement of claim as disclosing no
reasonable cause of action. On appeal, the Appeal
Division of the Federal Court set aside the order of
the Trial Division. On appeal to the Supreme
Court of Canada, the appeal was allowed and the
order of the trial judge restored.
Estey J., speaking for the Court, said that the
issue raised for disposition did not require addi
tional pleadings or evidence.
On this premise he said at page 741:
I therefore agree with respect with the judge of first instance
that it is a proper occasion for a court to respond in the opening
stages of the action to such an issue as this application raises.
The premise of Mr. Justice Estey's remarks
quoted above is present with even greater clarity in
the matter before me.
In a motion to strike a statement of claim, all
facts stated therein must be deemed to have been
proven. This principle is reflected in Rule 419(2).
There has been no defence filed to the statement of
claim. Counsel for the defendants herein categori
cally stated that he accepted all facts alleged in the
statement of claim, nor do the salient facts appear
to me to be susceptible of contradiction. Accord
ingly, none of the issues raised in the statement of
claim require additional pleading or any evidence
for their disposition. The issues raised in the state
ment of claim are entirely issues of law: this is the
interpretation of the provisions of the Citizenship
Act and the Canadian Charter of Rights and
Freedoms in the context of the allegations in the
statement of claim.
I am faced with precisely the same problem as
that which confronted my brother Marceau, but
more readily discernible, whose disposition thereof
has received the approval of the Supreme Court of
Canada, and accordingly I adopt the same course
as he did.
The conclusion which I reach is that the issues
raised by the statement of claim are proper
subject-matters to be addressed by the Court on a
motion to strike.
This therefore brings me to the second issue,
which is whether this particular Order in Council
is reviewable by reason of the Governor in Coun
cil's being in breach of the duty of fairness, or
whether such a duty is imposed on the Governor.
Orders in Council are reviewable upon the same
conditions as are statutes. As Orders in Council
are in the main consequent upon delegated author
ity, it follows that judicial intervention is proper in
the event that an Order in Council is beyond the
authority conferred on the Governor in Council to
make such order.
The plaintiff does not allege that Order in
Council P.C. 1982-2455 here in issue was made
without authority, but only that it is invalid in that
in its issuance the Governor in Council breached a
duty of fairness to the plaintiff in not informing
him of allegations against him and inviting his
response thereto.
Superimposed upon the review vested in the
courts to ascertain that an Order in Council is
ultra vires is the review to ascertain whether the
Governor in Council has failed to observe a condi
tion precedent to the exercise of the power con
ferred upon that body by statute.
In this respect Estey J. again in the Inuit
Tapirisat case (supra) had this to say at page 748:
Let it be said at the outset that the mere fact that a statutory
power is vested in the Governor in Council does not mean that
it is beyond review. If that body has failed to observe a
condition precedent to the exercise of that power, the court can
declare that such purported exercise is a nullity.
Later he added at page 752:
... the essence of the principle of law here operating is simply
that in the exercise of a statutory power the Governor in
Council, like any other person or group of persons, must keep
within the law as laid down by Parliament or the Legislature.
Failure to do so will call into action the supervising function of
the superior court whose responsibility is to enforce the law,
that is to ensure that such actions as may be authorized by
statute shall be carried out in accordance with its terms, or that
a public authority shall not fail to respond to a duty assigned to
it by statute.
The duty which the plaintiff has alleged the
Governor in Council has breached is that of proce
dural fairness expressed in the maxim audi
alteram partem, which duty is contended by him
to be an implied condition precedent to the exer
cise of the power conferred on the Governor in
Council under subsection 18(1) of the Citizenship
Act.
In this particular respect Estey J. had this to
say, again in the Inuit Tapirisat case, at page 755:
While it is true that a duty to observe procedural fairness, as
expressed in the maxim audi alteram partem, need not be
express ... it will not be implied in every case. It is always a
question of construing the statutory scheme as a whole in order
to see to what degree, if any, the legislator intended the
principle to apply.
To be extracted from the decision in the Inuit
Tapirisat case: there is a wealth of elements from
which the Court may infer from their presence an
intent of the legislature that the Governor in
Council shall be subject to and bound to observe
the rules of natural justice or a duty of fairness
when exercising the statutory duty, and the con
verse from the absence.
Following upon his admonition that the statute
must be construed with care to ascertain the legis
lative intent expressed therein, Estey J. then made
a detailed examination of the pertinent subsection
before him, in the course of which he made refer
ence to many elements as useful guides to interpre
tation, which apply with equal force to the statu
tory provisions here under consideration.
They are set out:
(1) Anything that serves to qualify the freedom
of action of the Governor in Council, such as the
imposition of guidelines, procedural or substan
tive, for the exercise of its functions under the
statutory provision (see page 745).
(2) If the Governor in Council is prohibited
from exercising the power on its own initiative,
that would preclude the inference that the power
is legislative in nature rather than administra
tive or judicial or quasi-judicial. If the power
were legislative in nature, then the duty of fair
ness or natural justice would not apply as in
functions of an administrative or judicial nature,
and the supervisory function of the court would
be limited to a determination whether the func
tions were performed within the boundary of the
parliamentary grant and in accordance with the
terms of the parliamentary mandate (see pages
758-759).
(3) Where there are no restrictions upon the
Governor in Council with respect to its staff,
departmental personnel concerned with the
subject-matter and advice of Cabinet colleagues
on policy issues rising from the question, and
when the Governor in Council acts on its own
motion, is legislative action in its purest form
(see pages 753, 754, 755 and 756).
(4) The discretion of the Governor in Council is
not curtailed by the statute.
(5) While it is possible for the courts to inter
vene with the Governor in Council when pre
scribed statutory conditions have not been met
or where there is an otherwise fatal jurisdiction
al defect, decisions made by the Governor in
Council in matters of public convenience and
general policy are final and not reviewable in
legal proceedings.
With these considerations in mind, it is expedi
ent to apply those guides to the pertinent provi
sions of the Citizenship Act.
Those provisions are paragraph 5(1)(e) and
section 18.
Under subsection 5(1), the Minister shall grant
citizenship to any person who, not being a citizen,
makes application therefor and meets the positive
requirements set out in paragraphs (a) to (d)
inclusive.
Paragraph 5(1)(e) is a prohibition so expressed
which reads:
5. (I) ...
(e) is not under a deportation order and is not the subject of
a declaration by the Governor in Council made pursuant to
section 18.
From its context and in the light of other provi
sions, the word "and" following the words "depor-
tation order" must be read in its disjunctive sense.
Section 18 is reproduced:
18. (1) Notwithstanding anything in this Act, a person shall
not be granted citizenship under section 5 or subsection 10(1)
or be issued a certificate of renunciation under section 8 if the
Governor in Council declares that to do so would be prejudicial
to the security of Canada or contrary to public order in
Canada.
(2) Where a person is the subject of a declaration made
under subsection (1), any application that has been made by
that person under section 5 or 8 or subsection 10(1) is deemed
to be not approved and any appeal made by him under subsec
tion 13(5) is deemed to be dismissed.
(3) A declaration made under subsection (1) ceases to have
effect two years after the day on which it was made.
(4) Notwithstanding anything in this or any other Act of
Parliament, a declaration by the Governor in Council under
subsection (I) is conclusive of the matters stated therein in
relation to an application for citizenship or for the issue of a
certificate of renunciation.
Thus citizenship shall not be granted to an
applicant therefor,
... if the Governor in Council declares that to do so would be
prejudicial to the security of Canada or contrary to public order
in Canada.
An application for citizenship is deemed to be
not approved and an appeal pending is deemed to
be dismissed.
The declaration lasts for two years.
The declaration is conclusive of the matters
therein in relation to an application for citizenship.
The plaintiff was made aware by the Registrar
of Citizenship that, by reason of the declaration in
Order in Council P.C. 1982-2455 pursuant to sub
section 18(1), his application for citizenship is
deemed to be not approved by virtue of subsection
18(2) and no further action would be taken
thereon.
Subsection 18(1) is peremptory in its terms. An
applicant shall not be granted citizenship if the
Governor in Council declares that to do so is
prejudicial to security or good order in Canada.
That is it.
In my view from the interpretation of the lan
guage of the statute there is no condition prece
dent imposed upon the exercise of the discretion
vested in the Governor in Council to declare that
the grant of a certificate of citizenship would be
prejudicial to the security of Canada or contrary to
the public order in Canada.
A condition is a provision (which may be
expressed or implied) which makes the existence of
a right (in this instance, to make a declaration)
dependant upon a certain circumstance's prevail
ing. A condition precedent is one which delays the
vesting of a right until something first happens.
The condition precedent sought to be implied, in
this instance, to the declaration by the Governor in
Council is compliance with the duty of fairness
and particularly, in this instance, the audi alteram
partem rule.
Subsection 18(1) of necessity contemplates the
formation of an opinion that the person is prejudi
cial to security or good order in Canada by the
Governor in Council itself. It is not the actual,
beforehand existence of that fact upon which the
declaration by the Governor in Council is predicat
ed but rather the contrary. That the person does
not become prejudicial to security or contrary to
good order until so declared by the Governor in
Council is what is contemplated by subsection
18(1) of the statute. What is contemplated in the
subsection is not a condition precedent but a con
dition subsequent. If the former had been the case
the subsection would have been cast in different
terms, to the effect that if a person is prejudicial to
security or contrary to good order in Canada, then
the Governor in Council may declare that the
person shall not be granted a certificate of
citizenship.
For that reason, the existence of a threat to
security or good order is not a condition precedent
to the exercise of the authority vested in the
Governor in Council.
Thus, since the actual existence of prejudice to
security or contrary to good order in Canada is not
a condition precedent to the declaration, it follows
that conclusive proof need not be adduced to so
establish, and if that be so, there is no obligation
on the Governor in Council to invite refutation by
the person.
By contrast, within subsection 5(1) itself the
Minister is subject to express positive conditions
precedent to the grant of citizenship, in paragraphs
(a) to (d) inclusive. If those conditions precedent
are not present he shall refuse the application. If
those conditions are present the Minister shall
grant citizenship.
No such conditions are to be found in section 18.
I do not overlook that if there is a deportation
order under the Immigration Act 1976, S.C. 1976-
77, c. 52, or a declaration by the Governor in
Council under subsection 18(1) of the Citizenship
Act, the existence of those circumstances are
included in paragraph 5(1)(e) and constitute a bar
to the grant of citizenship.
Reverting to the five guidelines previously
gleaned from the remarks of Mr. Justice Estey in
the Inuit Tapirisat case: the Citizenship Act
imposes no guidelines, procedural or substantive,
for the exercise of the authority in the Governor in
Council under subsection 18 (1) of the Act; nothing
in that section or other section in the Act precludes
the Governor in Council from exercising the power
vested in it; neither is it precluded from obtaining
or soliciting information and opinions from any
source it may wish, nor are there any limitations
imposed upon exercising the declaratory power
vested in it.
Thus the discretion in the Governor in Council
is unfettered both by the language of the statute
and no limitation is imposed by necessary
implication.
Superimposed upon the foregoing considerations
are others, as are applicable in this instance the
first of which is that the very nature of the body in
which the declaratory power is vested must be
taken into account as to the manner in which that
power is to be exercised. What is entrusted to the
apex of the executive (and, in some instances,
legislative) hierarchy is matters of policy and
expediency. While it is possible that Parliament
might impose some limitations, that is not usual in
such matters, and in my view Parliament has not
seen fit to so constrain the Governor in Council by
prescribing procedures and the like. Here the Gov
ernor in Council may act sui motu, and in this
instance has done so.
The second such circumstance flows from the
remarks made by Lord Denning M.R. in Regina v.
Secretary of State for Home Affairs, Ex parte
Hosenball, [1977] 1 W.L.R. 766 (Eng. C.A.),
with respect to national security. That this is a
case of national security is abundantly clear from
the words of subsection 18(1). The declaration
which may be given by the Governor in Council is
that to grant citizenship to a particular person
"would be prejudicial to the security of Canada or
contrary to public order in Canada".
Of the case before him Lord Denning said at
page 778:
But this is no ordinary case. It is a case in which national
security is involved: and our history shows that, when the state
itself is endangered, our cherished freedoms may have to take
second place. Even natural justice itself may suffer a set-back.
Time after time Parliament has so enacted and the courts have
loyally followed.
He added later at page 782:
The public interest in the security of the realm is so great that
the sources of the information must not be disclosed—nor
should the nature of the information itself be disclosed—if
there is any risk that it would lead to the sources being
discovered.
and,
Great as is the public interest in the freedom of the individual
and the doing of justice to him, nevertheless in the last resort it
must take second place to the security of the country itself.
culminating in the words:
When the public interest requires that information be kept
confidential, it may outweigh even the public interest in the
administration of justice.
Having answered the first question posed for
myself that the ultimate issue to be decided should
be decided at this stage and by this means for the
reasons expressed, and having found that the rules
of fairness cannot be read into subsection 18(1) of
the Citizenship Act either by the interpretation of
the language thereof or by necessary implication, I
am now brought to the third question posed.
In concluding as I have that the duty of fairness
cannot be read into subsection 18(1), I have not
overlooked the decision of the Appeal Division in
Lazarov v. Secretary of State of Canada, [1973]
F.C. 927; 39 D.L.R. (3d) 738 (C.A.).
The statutory provision there under consider
ation, subsection 10(1) of the Canadian Citizen
ship Act, R.S.C. 1970, c. C-19, is readily distin
guishable from the statutory provision here under
consideration, subsection 18(1) of the Citizenship
Act, S.C. 1974-75-76, c. 108.
Subsection 10(1) of the former Act, repealed by
the present Act, expressly conferred a discretion
on the Minister, which discretion was held not to
be merely a discretion to make a policy but a
discretion of an administrative nature to be exer
cised in a judicial or quasi-judicial manner, which
differs radically in language and purpose from
subsection 18(1) of the present Act, in which a
declaration is to be given on the basis of policy and
expediency. The words in subsection 10(1) of the
former Act reading, "The Minister may, in his
discretion, grant a certificate of citizenship", have
been replaced in subsection 5(1) of the present Act
by the words, "The Minister shall grant citizen
ship".
That third question, previously referred to
before the interposition of remarks on the Lazarov
case, is whether subsection 18(1) is of no force or
effect as inconsistent with sections 2, 7 and 12 of
the Canadian Charter of Rights and Freedoms.
Section 2 reads:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
These freedoms are described in the heading as
Fundamental Freedoms, and differ only in the
mode of their expression from the fundamental
freedoms acknowledged to have existed by section
1 of the Canadian Bill of Rights, S.C. 1960, c. 44
[R.S.C. 1970, Appendix III]. Thus no magical
change has been wrought in those freedoms which
persons have always enjoyed in Canada by reduc
ing them to writing in a statute or constitution.
Section 7 reads:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
This section is ranged under the heading Legal
Rights, and the marginal note thereto reads, "Life,
liberty and security of person".
The language of section 7 is enacted in the
Canadian Bill of Rights in paragraph 1(a) there
of, except that the deprivation of these rights must
be "by due process of law", which phrase is
replaced by the words, "in accordance with the
principles of fundamental justice".
Section 12 reads:
12. Everyone has the right not to be subjected to any cruel
and unusual treatment or punishment.
This section too had its progenitor in the
Canadian Bill of Rights, in section 2, paragraph
(b) thereof, to the effect that no law of Canada
shall be applied so as to:
2....
(b) impose or authorize the imposition of cruel and unusual
treatment or punishment;
These are the sections invoked as rendering
subsection 18(1) of the Citizenship Act nugatory.
However, by section 1 thereof, the rights and
freedoms set out in the Canadian Charter of
Rights and Freedoms are subject only "to such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society."
The relief sought in the plaintiff's statement of
claim, which the defendants by this motion seek to
strike, is for a declaration that the declaration by
the Governor in Council, P.C. 1982-2455, is inval
id and of no effect.
What the Order in Council declares is that "it
would be prejudicial to the security of Canada and
contrary to public order in Canada to grant citi
zenship to" the plaintiff.
By that declaration the plaintiff's right to
remain in Canada as a permanent resident remains
untouched, unaffected and unimpaired.
From that it follows that the fundamental free
doms set out in section 2 of the Canadian Charter
of Rights and Freedoms are likewise untouched,
unaffected and unimpaired and the plaintiff is not
precluded from enjoying those freedoms in
Canada.
Likewise, in my view, the plaintiff's rights "to
life, liberty and security of the person" remain
unaffected in Canada and remain his to enjoy as a
permanent resident in common with other resident
aliens.
Counsel for the plaintiff has contended that the
denial of citizenship to which the Order in Council
amounts (but only for two years and it is not an
absolute denial) curtails the right to protection
which is that of a citizen.
Citizenship is a status acquired by birth. A
natural-born subject owes allegiance to his sover
eign from birth, in return for which he is entitled
to protection.
At common law, a natural-born subject could
not cast off that allegiance at any time.
Relief from that obligation has been given by
recent statutes.
Recent statutes, such as the Citizenship Act and
its predecessor legislation such as the Naturaliza
tion Act, R.S.C. 1927, c. 138 [rep. by S.C. 1946, c.
15, s. 45], amongst other statutes, also provide for
an alien to acquire citizenship at the behest of the
granting state, subject to the conditions the state
deems fit to impose to that grant.
When granted, however, the citizen is subject to
the same obligation and to the same protection as
a natural-born citizen.
The lack of protection denied the plaintiff, con
tended to exist by his counsel, is that he is not
afforded the protection of a Canadian passport for
which Canadian citizenship is a prerequisite.
I fail to follow why the statute cannot dictate
the circumstances pursuant to which it will or will
not grant citizenship to aliens. That follows logi
cally from the fact that to grant citizenship is a
privilege within the state to bestow or withhold
and accordingly is a reasonable limitation justifi
able in a free and democratic society, as contem
plated by section 1 of the Canadian Charter of
Rights and Freedoms.
Further, I do not follow how the declaration by
the Governor in Council, which precludes the
grant of citizenship, can be said to deprive the
plaintiff of the right to security of his person.
Certainly he is not deprived of that right within
Canada. If he is deprived of that right beyond the
boundaries of Canada where Canadian jurisdiction
does not run, that is the result of an interposing
force over which Canada has neither jurisdiction
nor control.
For those reasons the declaration of the Gover
nor in Council does not result in the deprivation of
any of the plaintiff's rights under section 7 of the
Canadian Charter of Rights and Freedoms.
The remaining section of the Canadian Charter
of Rights and Freedoms invoked by the plaintiff as
being inconsistent with the declaration by the Gov
ernor in Council is section 12, the contention being
that the plaintiff has been subjected thereby to
"cruel and unusual treatment or punishment".
The plaintiff has not been subjected to a "pun-
ishment" which is the result of a positive act of
infliction. That is not the circumstance here.
At the most the plaintiff has been subjected to
"treatment", and the question follows whether that
treatment was "cruel and unusual".
My brother Mahoney in In re Gittens, [1983] 1
F.C. 152; 68 C.C.C. (2d) 438 (T.D.) had for
consideration whether in the term "cruel and
unusual treatment" the words "cruel" and "unusu-
al" should be read disjunctively or conjunctively or
whether not strictly conjunctive but interacting
expressions colouring each other to be considered
together as a compendious expression of a norm.
He adopted the third approach.
The matter before Mr. Justice Mahoney was a
deportation order.
He went on to say that it is the concept of the
execution of deportation orders generally and not
in their particular execution that is to be measured
against the norm of cruel and unusual treatment.
He concluded [at page 161 of the Federal Court
Reports] :
The incidents of deportation, whatever their degree, do not
render it cruel and unusual treatment of an adult.
As a norm, execution of a deportation order is not, in the
abstract, cruel and unusual treatment.
If the execution of a deportation order is not
cruel and unusual treatment, I fail to follow how
the declaration here under attack which leaves the
plaintiff free to live and enjoy life in Canada can a
fortiori constitute cruel and unusual treatment of
the plaintiff within the meaning of section 12.
Added to this, the rights and freedoms guaran
teed in the Canadian Charter of Rights and Free
doms are, by section 1, as pointed out at the outset
of the consideration thereof, subject to such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society.
I am mindful of the remarks made by Mahoney
J. in the Gittens case at page 158 [Federal Court
Reports] that:
The reasonableness of the right of a free and democratic state
to deport alien criminals is self-evident and, therefore,
demonstrably justified.
I am likewise mindful of the remarks of Lord
Denning in Regina v. Home Secretary (supra)
which 1 have quoted in another context as to the
paramountcy of the security of the realm.
With those considerations in mind, the reason
ableness of the right of a free and democratic state
to declare through its highest delagatee that it
would be prejudicial to the security of Canada and
contrary to public order in Canada to grant citi
zenship to a particular person is equally self-evi
dent and, accordingly, demonstrably justified.
For the foregoing reasons the statement of claim
herein is struck out and the action is dismissed.
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.