Federal Court Decisions

 

 

 

 

 

 

 

 

Date: 20090619

Docket: T-1162-07

Citation: 2009 FC 647

Ottawa, Ontario, June 19, 2009

PRESENT:     The Honourable Mr. Justice Barnes

 

 

BETWEEN:

LEAGUE FOR HUMAN RIGHTS OF

B’NAI BRITH CANADA

 

Applicant

and

 

HER MAJESTY THE QUEEN,

THE ATTORNEY GENERAL OF CANADA

and WASYL ODYNSKY

 

Respondents

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application by the League for Human Rights of B’nai Brith Canada (B’nai Brith) challenging the lawfulness of Order in Council No. P.C. 2007-804 rendered by the Governor in Council (GIC) on May 17, 2007.  In that decision, and notwithstanding the recommendation of the Minister of Citizenship and Immigration (Minister), the GIC declined to exercise the power conferred upon it by s. 10 of the Citizenship Act, R.S.C. 1985, c. C-29 (Act) to revoke the Canadian citizenship of the Respondent, Wasyl Odynsky.  This decision is challenged by B’nai Brith on the basis that the GIC exceeded its authority by taking into consideration matters which were outside the scope of s. 10 of the Act and, in particular, evidence concerning the personal circumstances of Mr. Odynsky.  B’nai Brith contends that the only matter that the GIC could lawfully consider was whether Mr. Odynsky obtained his Canadian citizenship on the strength of a material misrepresentation.  This argument is based on the language of s. 10 which states that a person ceases to be a citizen where the GIC, on a report from the Minister, is satisfied that citizenship was obtained by false representation or fraud or by knowingly concealing material circumstances.  Since the Federal Court had conclusively made a finding of material misrepresentation against Mr. Odynsky in a reference proceeding brought under s. 18 of the Act, B’nai Brith says that the GIC had no option but to issue an order for revocation of his citizenship.  In addition, B’nai Brith challenges the GIC to decision under s. 7 of the Charter and for an alleged breach of the duty of fairness. 

 

I.                   Background

[2]               At some point the Minister became aware that during World War II Mr. Odynsky had worked as a guard in the Poniatowa forced labour camp in the Ukraine under the direction of the German S.S.  In that camp in November 1943, thousands of Jewish prisoners were massacred by killing squads commanded by the S.S.  The Minister was concerned that Mr. Odynsky had not disclosed this history when he sought entry to Canada as a landed immigrant in 1949. 

 

[3]               On September 24, 1997 the Minister indicated an intention to seek the revocation of Mr. Odynsky’s Canadian citizenship by giving notice to him in accordance with s. 18 of the Act.  Mr. Odynsky then exercised his right under s. 18 for a referral of his case to the Federal Court.  That reference was perfected by the Minister on December 11, 1997. 

 

[4]               The Federal Court reference was heard by Justice Andrew MacKay in late 1998 and continued into August of 1999 (see: Canada (Minister of Citizenship and Immigration) v. Odynsky, 2001 FCT 138, 196 F.T.R. 1).  Justice MacKay heard evidence from witnesses in the Ukraine and in Toronto and found, on a balance of probabilities, that Mr. Odynsky had obtained a visa for entry to Canada by lying to Canadian authorities when asked about his wartime experiences.  On the strength of this conclusion Justice MacKay made a declaration pursuant to s. 18 of the Act that Mr. Odynsky obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances.  His decision included these additional findings:

225.     In considering any report to the Governor General in Council concerning Mr. Odynsky pursuant to s-s. 10(1) of the Act, the Minister may wish to consider that

 

1)         on the evidence before me I find that Mr. Odynsky did not voluntarily join the SS auxiliary forces, or voluntarily serve with them at Trawniki or Poniatawa, or later with the Battalion Streibel;

 

2)         there was no evidence of any incident in which he was involved that could be considered as directed wrongfully at any other individual, whether a forced labourer-prisoner, or any other person;

 

3)         no evidence was presented of any wrongdoing by Mr. Odynsky since he came to Canada, now more than 50 years ago;

 

4)         evidence as to his character from some of those who have known him in Canada, uncontested at trial, commended his good character and reflected his standing within his church and within the Ukrainian community in Toronto.

 

226.     While those factors may be relevant to any discretion the Minister or the Governor in Council may exercise, they are not relevant in this proceeding.

 

 

[5]               Before submitting a report under s. 10 of the Act to the GIC, the Minister invited further submissions from Mr. Odynsky.  He responded with extensive material attesting to his good character and setting out a number of other mitigating factors. 

 

[6]               Notwithstanding Mr. Odynsky’s entreaties, the Minister proceeded with a report to the GIC recommending that his citizenship be revoked.  The basis for that recommendation was as follows:

Before deciding to recommend revocation, I have also balanced the personal interests of Mr. Odynsky against the public interest.  In doing so, I have considered the personal interest issues raised on Mr. Odynsky’s behalf by his counsel and his family in appendices C, D, F, H and J attached to this report, and in letters of support from other Canadian individuals and organizations, including the letters which form part of those appendices.  I have concluded, for the following reasons, that the public interest in holding him accountable for the seriousness of his deceit regarding his wartime activities outweighs Mr. Odynsky’s personal interests:

 

1.         Mr. Odynsky’s citizenship was obtained through deceit.  The length of time he has been in Canada should not be conclusive in deciding whether that citizenship should be revoked, at least in a situation such as the instant case where the deceit foreclosed inquiries relating to reprehensible acts committed in wartime.  Otherwise, the effect would be to allow Mr. Odynsky to benefit now from his deception on entry about such grave matters.

 

2.         Notwithstanding the evidence regarding Mr. Odynsky’s good character since he came to Canada, the fact remains that Mr. Odynsky would not have enjoyed any life in Canada as a Canadian citizen if he had told the truth when he applied to come to this country.

 

3.         Mr. Odynsky’s personal interest in staying in Canada does not outweigh the public interest in ensuring Canada will not be a safe haven for persons complicit in wartime crimes or atrocities and in ensuring the integrity of the Canadian citizenship process.  Moreover, it is inappropriate to put a great deal of emphasis on Mr. Odynsky’s personal interest in maintaining citizenship in order to maintain family ties.  Revocation of citizenship does not automatically lead to deportation. Removal proceedings do not ensue unless I choose to refer an inadmissibility report by an immigration officer to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing.

 

4.         The considerations of state sponsored health care and protection of the elderly do not outweigh the serious misrepresentation made by Mr. Odynsky.  As a result of his deceit in entering Canada, Mr. Odynsky gained the status that entitled him to enjoy 50 years of state sponsored health care.  His interest in maintaining the benefits of that status are outweighed by the public interest described above.

 

5.         Mr. Odynsky’s personal interest in remaining in Canada does not outweigh the public interest in ensuring:

 

a.         that Canada will not be a safe haven for persons who have committed or been complicit in war crimes, crimes against humanity or other reprehensible acts regardless of when or where they were committed; and

 

b.         the integrity of the Canadian citizenship process.

 

Furthermore, I have concluded that Mr. Odynsky’s case is still placed within the policy of Canada’s War Crimes Program regarding World War II cases although it was concluded by Mr. Justice MacKay that Mr. Odynsky’s service with the Germans was not voluntary.  As indicated by Justice Counsel in her submissions of November 22, 2001:  “(...) membership alone was not the basis for commencement of proceedings, Mr. Odynsky served as a paid, armed guard at a Forced Labour Camp primarily populated by Jewish prisoners, both before and after those prisoners were massacred as part of the ‘Final Solution’”.  The nature of Mr. Odynsky’s service, whether voluntary or not, had no bearing on his admissibility to Canada in 1949.  The fact that his service was found to be involuntary does not change the fact that he did not reveal anything about that service when he applied to come to Canada.

 

 

[7]               After considering the Minister’s Report the GIC issued an Order in Council stating:

Her Excellency the Governor General in Council, having considered the report of the Minister of Citizenship and Immigration made under section 10 of the Citizenship Act in relation to the person named in the annexed schedule, hereby declines to exercise the power conferred by section 10 of the Citizenship Act with respect to that person.

 

 

It is from this decision that B’nai Brith seeks declaratory and other prerogative relief.

 

II.        Issues

[8]               (a)        Does the Applicant have standing and, if so, did the GIC err in the exercise of its authority under s. 10 of the Act by taking into account matters other than whether Mr. Odynsky had obtained his Canadian citizenship on the basis of a material misrepresentation or omission?

 

            (b)        Did the GIC owe a duty of fairness to B’nai Brith?

 

            (c)        Was the GIC’s decision reasonable?

 

            (d)        Does s. 7 of the Charter apply?

 

III.       Analysis

Standing

[9]               There is no basis for B’nai Brith’s contention that it has a “direct interest” or is “directly affected” by the GIC’s decision concerning Mr. Odynsky.  This issue was conclusively determined by Justice Eleanor Dawson in the earlier appeal from the Prothonotary’s summary dismissal order in this proceeding (see: League for Human Rights of B’nai Brith Canada v. Canada, 2008 FC 732, [2008] F.C.J. No. 926).  It cannot be reargued now. 

 

[10]           Justice Dawson left open the question of whether B'nai Brith should be granted public interest standing but her decision, nevertheless, contains a thorough and very helpful analysis of the relevant evidence and authorities on that issue.

 

[11]           There is no disagreement among the parties that an applicant for public interest standing must satisfy a conjunctive three-part test.  It is required that:

                                       i.      There is a serious question raised;

                                     ii.      The applicant has a genuine or direct interest in the outcome of the litigation; and

                                    iii.      There is no other reasonable or effective way to bring the issue before the Court.

 

See Canada v. Borowski, [1981] 2. S.C.R. 575, Sierra Club of Canada v. Canada (Minister of Finance), [1999] 2 F.C. 211 (T.D.), and Canadian Council of Churches v. Canada, [1992] 1 S.C.R. 236.

 

[12]           There is no question that B’nai Brith has raised a serious issue of statutory construction in this proceeding and the Attorney General did not strenuously argue otherwise. Justice Dawson also felt this was a serious issue worthy of further consideration, and I can find no basis for taking issue with her finding.

 

[13]           The question of whether B’nai Brith has a genuine or direct interest in the GIC’s decision is somewhat more vexing.  Because of its longstanding involvement in the advancement of human rights and in war crimes issues, B’nai Brith claims to have sufficient expertise and interest to challenge what it contends was an unlawful interpretation of s. 10 of the Act.

 

[14]           Having reviewed the authorities including Sierra Club, above, Canadian Council of Churches, above, and Harris v. Canada (2000), 256 N.R. 221 (F.C.A.) and considering the affidavit of Alan Yusim, Director, MidWest Region for B’nai Brith, I am satisfied that B’nai Brith has met the genuine interest requirement necessary for public interest standing in this case.  Indeed, I cannot think of any other outside party which would have a greater interest in the outcome of a case like this one than B’nai Brith. 

 

[15]           Ordinarily it is the third requirement for public interest standing that will be a stumbling block for a party like B’nai Brith (see Sierra Club, above, and Canadian Council of Churches, above).  That is so because in most cases involving a dispute between the Crown and a private-interest litigant, one party will be aggrieved by the outcome and will almost always be better placed than a public-interest party to challenge it.  That is not the case here.  The history of the few reported cases involving citizenship revocation indicates that both the Crown and the affected person have consistently maintained that the GIC has a broad discretion under s. 10 of the Act.  In cases like Oberlander v. Canada (Attorney General), 2003 FC 944, [2003] F.C.J. No. 1201 (Oberlander (2003)) where the person affected seeks judicial review of a negative decision by the GIC, the option of intervening will not be attractive for the reasons already expressed by Justice Dawson in the earlier proceeding in this case:

64     However, there is jurisprudence to the effect that an intervener takes the pleadings and the record as it finds them, and that an intervener may not litigate new issues. See, for example, Maurice v. Canada (Minister of Indian Affairs and Northern Development) (2000), 183 F.T.R. 45 (T.D.). In the Oberlander case, both the Attorney General and Mr. Oberlander proceeded on the basis that the Governor in Council could engage in a balancing of the individual’s personal interests. A similar position has been adopted by the Attorney General in this case.

 

 

[16]           In a case like this one where citizenship is not revoked, the GIC’s decision will never be judicially reviewed except where a third party seeks to do so.

 

[17]           I do not accept the argument advanced by Mr. Odynsky’s counsel that a party like B’nai Brith can never be permitted to directly challenge the outcome of an administrative process between private litigants.  The suggested option of bringing a wholly independent application for declaratory relief ignores the problem that such a proceeding would have to be advanced hypothetically without an evidentiary record or a reviewable decision.  To my thinking this proceeding represents the only realistic means for B’nai Brith to seek a declaration with respect to the point of statutory interpretation it asserts. 

 

Standard of Review

[18]           Before addressing the statutory interpretation issue raised on this application it is necessary to identify the appropriate standard of review.  This was an issue thoroughly canvassed by the Court of Appeal in Oberlander v. Canada (Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3 (Oberlander (C.A.)) and later by Justice Michael Phelan in Oberlander v. Canada (Attorney General), 2008 FC 1200, [2008] F.C.J. No. 1439 (Oberlander (2008)) and I need not repeat that analysis here.  It is sufficient for present purposes to conclude that the scope of s. 10 of the Act is a matter of law to be resolved on the standard of correctness.  With respect to the review of the GIC decision on the merits and subject, of course, to the modifications established more recently in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, I would adopt the following statement of Justice Robert Décary in Oberlander (C.A.) at paras. 55 and 56:

55     The case at bar resembles Suresh to the extent that the Governor in Council is dealing with a self-imposed government policy, but it cannot be said here that there is a negligible legal dimension in determining whether a person falls within the ambit of the war criminals policy. A Canadian citizen ought not, in my view, be declared stateless and be stigmatised as a suspected war criminal by a decision which would be reviewed on a standard affording greater deference than on the standard of reasonableness simpliciter.

 

Application of the standard of review

 

56     I agree with the reviewing Judge that there was no obligation on the Governor in Council to mention all the elements it considered before reaching its decision and that the fact that peripheral elements are not mentioned is no proof that they were not considered or that they were arbitrarily discarded. I also agree that a reviewing court should not enter into a re-weighing of the evidence and the factors submitted by the parties.

 

 

Previous Authorities

[19]           Counsel for the Attorney General argued before me that the scope of the GIC’s discretion under s. 10 was settled by the Court of Appeal decision in Oberlander (C.A.), above, and by other authorities which have at least implicitly recognized a broad discretion at that stage of the citizenship revocation process.  There is no question that the Attorney General took the position in the proceedings involving Mr. Oberlander that the GIC’s authority included a delicate balancing of policy, personal interests and the public interest, but I do not agree that the Court unreservedly accepted that position.  Rather, the Court found it unnecessary to resolve the point and simply assumed that the Attorney General’s position was well-founded (see Oberlander (C.A.) at para. 42).  On this point, I am in complete agreement with the views of my colleague Justice Dawson who, in dealing with the interlocutory appeal in this proceeding, interpreted the decision in Oberlander (C.A.) as follows:

42     I read this to be a clear reservation that the Court of Appeal accepted, for the purpose of the appeal, the Attorney General’s acknowledgment of the need to balance interests, but that such acceptance was not intended to foreclose future argument on the issue.

 

43     In the circumstance where the Court of Appeal’s decision was expressly stated to be based upon the Minister’s acknowledgment, I do not find that the applicant’s argument is bereft of any possibility of success because of the Oberlander decision.

 

44     This view is consistent with the observation of Justice Pratte in Canada (Minister of Employment and Immigration) v. Taggar, [1989] 3 F.C. 576 (C.A.), at page 582, that the authority of a prior decision "is very limited since, rightly or wrongly, it was partly based on the concession made by counsel for the Minister."

 

 

[20]           Other relevant authorities have only lightly touched on the issue of the scope of the GIC’s authority under s. 10.  This is not entirely surprising because both the Minister’s and the GIC’s past working assumption seems to have been based on the existence of a broad statutory discretion.  At the same time it would not have been of any interest to the person affected to argue for a more limited authority based solely on the determination of the question of material misrepresentation.  That was the situation in the underlying reference hearing in this case, where Justice MacKay found that Mr. Odynsky had obtained his citizenship on the strength of false representations or by knowing concealment of material circumstances about his wartime activities (see para. 221).  Nevertheless, Justice MacKay went on to make a number of additional findings concerning the degree of Mr. Odynsky’s complicity and his good character.  These matters, he said, were not relevant to the issue he had to decide but “may be relevant to any discretion the Minister or the Governor in Council may exercise”. 

 

[21]           In Oberlander (2003) Justice Luc Martineau held that the GIC’s authority under s. 10 was to be exercised independently from the Federal Court reference finding.  He also identified no legal error arising from the GIC’s consideration of the Government’s “no safe haven” policy.  Those findings, though, were made in the context of argument from both parties that the GIC had a broad discretion under s. 10. 

 

[22]           When the Oberlander case was recently redetermined, Justice Michael Phelan came to the same conclusion but, again, in the context of common ground between the parties as to the scope of the GIC’s s. 10 authority:  see Oberlander (2008), above.

 

[23]           In an earlier decision of this Court in Canada (Minister of Citizenship and Immigration) v. Bogutin (1997), 42 Imm. L.R. (2d) 248, [1998] F.C.J. No. 211, Justice William McKeown observed that under ss. 10(1)(a) of the Act there is an automatic cessation of citizenship where the GIC is satisfied that citizenship was obtained by material misrepresentation.  To the same effect is the decision by Justice Donna McGillis in Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493, 140 F.T.R. 183.  Notwithstanding those comments, in both decisions there is a recognition that the Federal Court reference decision is merely one step in a process which may or may not result in the revocation of citizenship.  Neither of those decisions undertook a detailed analysis of the scope of the GIC’s mandate.  Indeed, the passages relied upon appear to me to be first-impression and inconclusive obiter. 

 

[24]           My review of the relevant authorities indicates that the issue before me has not been previously analyzed in the context of thorough or competing argument and, in the result, there has yet to be a considered decision on point. It is therefore necessary to consider the scope of the GIC’s authority under s. 10 of the Act.

 

The Scope of the GIC’s Authority Under S. 10 of the Act

[25]           The process for revoking Canadian citizenship under the Act is clear enough[1].  Under s. 18, where the Minister has formed a preliminary view that a person may have obtained Canadian citizenship by false representation, fraud or knowing concealment of material circumstances, the Minister cannot pursue revocation without first giving notice of an intention to do so.  The affected person is then entitled to request that the Minister refer the case for adjudication in the Federal Court.  Where the Federal Court determines that Canadian citizenship was obtained by false representation, fraud or knowing concealment of material circumstances, it will issue a declaration to that effect.  The Minister may then submit a report to the GIC recommending an order for revocation of citizenship.  Upon the GIC being “satisfied” that the person obtained citizenship by false representation, fraud or knowing concealment of material circumstances, the person ceases to be a citizen “as of such date as may be fixed by order of the Governor in Council”. 

 

[26]           The determination of whether Canadian citizenship was obtained through a material and wilful misrepresentation or omission is a threshold issue that is carried forward through the revocation process.  The Minister cannot consider a revocation without forming a preliminary view on the point.  Upon the request of the person affected, the Federal Court must resolve that issue on a balance of probabilities and, where so determined, issue a declaration.

 

[27]           On a report from the Minister the GIC must then be “satisfied” that citizenship was fraudulently obtained before it can make the final order for revocation. 

 

[28]           There is a practical necessity for resolving the material misrepresentation question in a judicial hearing.  This is a question of fundamental importance to the rights of the affected person requiring a careful assessment of considerable evidence such that a process of independent adjudication is essential to its proper determination[2].  It is not a matter that either the Minister or the GIC is appropriately placed to resolve.  Accordingly there is a clear purpose served by segregating that part of the process from what follows under s. 10. 

 

[29]           The question that remains, though, is whether the express mention of a material misrepresentation in s. 10 was intended to remove all other matters from consideration in the exercise of the GIC’s discretion, or whether it was intended only to identify or highlight that issue as an essential precondition to the GIC’s revocation order.

 

[30]           The principle of statutory interpretation that underlies B’nai Brith’s argument is that Parliament’s expression of the single consideration of material misrepresentation by the GIC necessarily excludes all other considerations from the exercise of its s. 10 discretion.  This, it argues, reflects the principle of implied exclusion: that the legislative expression of one thing excludes

another.  This principle and its limitations were discussed at length by the Federal Court of Appeal in Normandin v. Canada (Attorney General), 2005 FCA 345, [2005] F.C.J. No. 1768 at paras. 26-28 and 31-32:

26     The appellant’s argument in relation to the implied exclusion rule is attractive, but it gives this rule of construction an absolutism that the cases and authorities quite uniformly do not grant it.

 

27     First, this rule of statutory interpretation, also known as the "a contrario argument" (see Pierre-André Côté, The Interpretation of Legislation in Canada, 3rd ed. (Scarborough: Carswell, 2000), at p. 336), operates in the following way, according to Professor Sullivan in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at pages 186-87:

 

An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.

 

28     But important and useful as it may be, this rule of construction is very far from being a general rule of application or interpretation: see Congrégation des Frères de l’Instruction chrétienne v. School Commissioners for the Municipality of Grand’Pré, [1977] 1 S.C.R. 429, at page 435; Murray Bay Motor Co. v. Belair Insurance Company, [1975] 1 S.C.R. 68, at page 74. In fact, in Alimport v. Victoria Transport, [1977] 2 S.C.R. 858, at page 862, Mr. Justice Pigeon, discussing the rule and speaking for the Court, writes:

 

The principle that the mention of a particular case excludes application of other cases not mentioned is far from being recognized as a general rule of interpretation. On the contrary, an affirmative

provision of limited scope does not ordinarily exclude the application of a general rule otherwise established.

 

[...]

 

31     Second, this rule of statutory interpretation relied on by the appellant must be used with the utmost caution: see P.-A. Côté, The Interpretation of Legislation, supra, at page 337. Lacking absolute intrinsic value, the rule must be set aside when other statutory provisions relevant to the issue under review suggest that its consequences would go against the statute’s purpose (see P.-A. Côté in his work, supra, at page 339, Ternette v. Solicitor General of Canada, [1984] 2 F.C. 486 (T.D.), are manifestly absurd (Congrégation des Frères de l’Instruction chrétienne, supra, at page 436) or lead to incoherence and injustice (Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at pages 321-22).

 

32     In short, the expressio unius est exclusio alterius rule cannot be used to thwart the intention of Parliament and make it inoperative. "Like all arguments based on these presumptions", writes Professor Sullivan, at page 193 of her work, supra, referring to the rule, "its weight depends on a range of contextual factors and the weight of competing considerations. Even if an implied exclusion argument is not rebutted, it may be outweighed by other indicators of legislative intent."

 

 

[31]           In my view, the isolation of the material misrepresentation issue in s. 10 was not intended to remove from the GIC the discretion to consider other factors before issuing an order for revocation of citizenship.  It is true that a material misrepresentation is the only prerequisite to a revocation decision and that such a finding underpins the entire process of revocation.  But it does not necessarily follow that all other factors are thereby excluded from consideration either by the Minister or by the GIC.  The reason why the implied exclusion does not apply in this situation is explained in the following passage from Professor Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at p. 250:

There are several ways to rebut an implied exclusion argument.  One is to offer an alternative explanation of why the legislature expressly mentioned some things and was silent with respect to others.  The legislature may have wished, for example, to emphasize the importance of the matters mentioned or, out of excessive caution (ex abundanti cautela), to ensure that the mentioned matters were not overlooked.  Express reference to something may be necessary or appropriate in one context but unnecessary or inappropriate in another.

 

[Footnotes omitted]

 

 

Also see Martineau v. Matsqui Institution, [1978] 1 S.C.R. 118 at p. 130 and Alberta v. Canada (Transport Commission), [1978] 1 S.C.R. 61 at p. 68.

 

[32]           Here the legislative context supports the Respondents’ position that the GIC’s authority under s. 10 is more than a mere formality and that it enjoys a broad discretion to consider matters beyond the issue of material misrepresentation. 

 

[33]           The usual way to confer a legislative discretion upon a decision-maker is to couple the authority to decide a matter with the word "may".  Section 10 does not use that convention in a direct way but, instead, creates an automatic revocation of citizenship to take effect as of such date as may be fixed by order of the GIC.  While this is an atypical approach to the conferral of a discretion, this language seems to me to suggest an enlargement to the scope of the GIC’s discretion beyond consideration of the single issue of material misrepresentation.  If it was otherwise intended, Parliament could easily have used the mandatory words "as of such date as shall be fixed by order of the GIC", thereby excluding the possibility that the GIC might choose not to fix any date for the revocation of a person’s citizenship based on its own consideration of relevant factors.  Within the complete context of s. 10, Parliament’s permissive language is indicative of an intent to confer a broad discretion upon the GIC in the exercise of its revocation authority.

 

[34]         Moreover, while the Court of Appeal decision in Oberlander (C.A.) does not conclusively resolve the scope of the GIC’s discretion under s. 10, it does offer some insight into other aspects of the decision-making process which helps to understand the GIC’s mandate.  Of particular significance is the observation at para. 40 of the decision that the Minister’s Report to the GIC is not a means by which the Federal Court finding of material misrepresentation can be challenged.  That misrepresentation finding is said to be final, non-reviewable and binding as an "indisputable fact" upon the GIC.  This is, of course, consistent with the clear stipulation in ss. 18(1)(b) of the Act that the Federal Court "decides" whether or not there has been a material misrepresentation.  Then, at para. 36 of the Oberlander (C.A.) decision, the Court characterized the role of the Minister in preparing a Report as follows:

36     Section 10 of the Citizenship Act requires the Minister to prepare "a report". In the absence of any mandatory formula which the Minister should adopt, a wide latitude should be given to her. The prosecutor’s brief in Suresh -- the content of which is not described in the reasons for judgment -- should not be taken out of its statutory and factual context, even more so since the principal reason why it was not accepted was that it was not articulate nor rational. The reviewing Judge was correct in finding that the Report of the Minister was part of the reasons of the Governor in Council.

 

[Emphasis added]

 

 

[35]           It is difficult to think of a purpose that would be served by a ministerial report to the GIC if the only relevant fact that the GIC can consider has already been indisputably decided on a reference to the Federal Court.  I would add to this that in its earlier decision in Canada (Secretary of State) v. Luitjens, [1992] F.C.J. No. 319, 142 N.R. 173 (F.C.A.) the Federal Court of Appeal described the Federal Court finding of material misrepresentation as "merely one stage of a proceeding which may or may not result in a final revocation of citizenship".  This statement is difficult to reconcile with the proposition that the sole determinative issue for revoking citizenship is one already conclusively determined by the Federal Court.  B’nai Brith attempted to answer this point by saying that the Minister has a plenary discretion to decide whether to refer a case for revocation to the GIC notwithstanding a finding of material misrepresentation by the Federal Court.  Presumably this broader discretion would permit the Minister to consider the personal circumstances of the affected person along with relevant government policies dealing with revocation of citizenship in like situations.  However, as noted above, the Federal Court of Appeal in Oberlander (C.A.) observed that while there is no legislative expression to support a broad ministerial discretion, the Minister was said to have a "wide latitude" in reporting to the GIC.  It appears doubtful to me that Parliament intended that only the Minister should have a plenary discretion to refer a matter to the GIC but that the GIC has no discretion to look behind the Minister’s decision.  The idea that the GIC is fulfilling merely a symbolic role in this process and is bound to accept the Minister’s recommendation to revoke citizenship is not a proposition that appeals to me and it is not consistent with the Court’s view of the significance of the Minister’s reporting function as described in Oberlander (C.A.). 

 

[36]           While the Minister may well enjoy a discretion not to proceed at all with the process of revocation, once that process is initiated there is no basis in the language of s. 10 to support the argument that the scope of the Minister’s discretion is any broader than that of the GIC.  Once the Federal Court has found that citizenship has been conferred on the basis of a misrepresentation, the Act makes no distinction between the Minister’s authority and that of the GIC.  The GIC’s authority to make an order is directly tied to a “a report from the Minister”.  If the Minister is entitled to report broadly to the GIC it is implicit that the GIC has a corresponding discretion to take into account any relevant factors before issuing a revocation order.

 

[37]           B’nai Brith countered by arguing that the reason the GIC is tasked with being “satisfied” that citizenship has been fraudulently obtained is to account for situations where the person affected does not request a Federal Court reference.  There the GIC must make its own misrepresentation finding.  While this argument has some superficial appeal, I think it likely that if Parliament had such a specific intent it would have stated that case explicitly.  Instead, Parliament adopted language in s. 10 which does not distinguish between the two situations.  This failure to make a distinction where one would otherwise be expected implies that the GIC’s discretion was not intended to be limited but, rather, was considered plenary. 

 

[38]           Ultimately on this issue I am of the view that the requirement for a finding of material misrepresentation in s. 10 of the Act was not intended by Parliament to remove other matters from consideration in the exercise of the GIC’s discretion.  Instead, that issue was highlighted to ensure that citizenship could not be revoked except where that prerequisite had been established.

 

[39]           As one final point on the interpretation of s. 10, I must comment on the Respondents’ reliance upon the use of the word “peut” that appears in the French text of the Act.  This language, they say, further indicates that a broad discretion is conferred upon the GIC.  I do not, however, believe that I can rely upon that reference in the French text.

 

[40]           The word “peut” was first introduced into the French version of the Act in the 1985 statutory revisions.  By virtue of s. 4 of the Revised Statutes of Canada, 1985 Act, R.S.C. 1985, c. 40 (3rd Supp.) any such change does not operate as new law but is to be construed as a consolidation of the law as it was previously enacted.  It is noteworthy that the English text was not changed through the 1985 statutory revision thereby creating a variance between the French and English that did not previously exist.  This same problem was of concern to the Court of Appeal in Beothuk Data Systems Ltd. v. Dean, [1998] 1 F.C. 433, [1997] F.C.J. No. 1117, where a substantive change to the French version of the Canada Labour Code in the 1985 statutory revision was held to have been made without authority and could not inform the search for Parliament’s original intent (see paras. 43-44).  It would only be in a situation where the same change was effected in both languages that one could infer that the revision was made for clarification and to bring the text into closer conformity with the original Parliamentary intent.

 

Duty of Fairness

[41]           B’nai Brith argues that the GIC owed it a duty of fairness, at least to the extent of providing reasons for its decision.  This duty, it says, would arise at the point in time that B’nai Brith’s interests as a public-interest litigant were known or could be ascertained. 

 

[42]           This argument is without merit.  There is no recognized duty of fairness owed to the public at large.  To the extent that fairness may require a decision-maker to provide reasons it is an obligation owed only to the parties directly affected and no further.  This has been made clear in decisions like Newfoundland Telephone Co. v. Newfoundland (Board of Commissioner of Public Utilities), [1992] 1 S.C.R. 623 at para. 21 where the administrative decision-maker’s duty of fairness was expressly limited “to the regulated parties whose interest they must determine”. 

 

[43]           It is also clear in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 that the scope of the duty of fairness, including the obligation to give reasons for a decision, will vary according to the importance or impact of the decision to the lives of those affected by it.  At the centre of the fairness analysis was said to be a consideration of whether “those whose interests were affected had a meaningful opportunity to present their case fully and fairly”.  In light of these principles, it cannot be said that a decision-maker owes any duty of fairness to a third-party which claims to represent the public interest but which is not directly involved in the decision-making process at first instance. 

 

Reasonableness

[44]           B’nai Brith broadly asserted in its written argument that the GIC decision not to revoke Mr. Odynsky’s citizenship is indefensible and not within the range of reasonable and acceptable outcomes.  The record discloses, however, that the GIC had before it a considerable body of mitigating evidence supporting leniency, including Justice MacKay’s findings that Mr. Odynsky was not a volunteer and had not been shown to have acted wrongfully towards any other person in the camps where he served.  In addition, Justice MacKay noted Mr. Odynsky favourable record since arriving in Canada in 1949.  It was reasonably open to the GIC on this record to have rejected the Minister’s recommendation for revocation of citizenship and B’nai Brith has not made a convincing case to the contrary. 

 

The Application of the Charter

[45]           Lastly, B’nai Brith contends that the GIC’s decision not to revoke Mr. Odynsky citizenship constitutes a breach of s. 7 of the Charter and renders Canada complicit as an accessory after the fact to war crimes and crimes against humanity.  This submission was not further advanced in oral argument and it is devoid of merit.  I need only say that B’nai Brith has not explained how its corporate interests could be engaged under s. 7 and its argument is otherwise hypothetical on this record. 

 

IV.       Conclusion

[46]           On the basis of the foregoing, I am satisfied that the Governor in Council’s discretion under s. 10 of the Citizenship Act extends beyond a consideration of the existence of a material misrepresentation and may include other factors such as the personal circumstances of the affected person.  In the result, I am satisfied that the decision under review was made in conformity with the authority conferred upon the GIC by s. 10 of the Act.  In addition, the GIC owes no duty of fairness to third parties in the exercise of its s. 10 authority and has no obligation to provide reasons to anyone other than the person affected.  There is also no basis for concluding that the GIC’s decision was unreasonable or was made in breach of the Charter. 

 

Costs

[47]           Neither B’nai Brith nor the Crown sought costs against the other and, as between them, no costs are awarded.  Mr. Odynsky is entitled to his costs payable by B’nai Brith under Column III.

 

 

JUDGMENT

 

            THIS COURT ADJUDGES that this application for judicial review is dismissed with costs payable to Mr. Odynsky by B’nai Brith under Column III.

 

 

 

“ R. L. Barnes ”

APPENDIX 1

 

 

[...]

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-1162-07

 

STYLE OF CAUSE:                          LEAGUE FOR HUMAN RIGHTS OF B’NAI BRITH CANADA

                                                            v.

                                                            HMTQ et al.

 

PLACE OF HEARING:                    Toronto, ON

 

DATE OF HEARING:                      March 16 and 17, 2009

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    Mr. Justice Barnes

 

DATED:                                             June 19, 2009

 

 

 

APPEARANCES:

 

David Matas 204-944-1831	FOR THE APPLICANT
M. David Gates 403-299-3504	FOR THE RESPONDENTS HER MAJESTY THE QUEEN, THE ATTORNEY GENERAL OF CANADA
Barbara Jackman 416-653-9964	FOR THE RESPONDENTS WASYL ODYNSKY

 

SOLICITORS OF RECORD:

 

David Matas Barrister and Solicitor Winnipeg, MB

FOR THE APPLICANT

 

John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENTS HER MAJESTY THE QUEEN, THE ATTORNEY GENERAL OF CANADA
Jackman & Associates Barristers and Solicitors Toronto, ON	FOR THE RESPONDENTS WASYL ODYNSKY