Date: 20041123
Docket: A-534-04
Citation: 2004 FCA 394
CORAM: LÉTOURNEAU J.A.
BETWEEN:
ERNST ZUNDEL
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE SOLICITOR GENERAL OF CANADA
Respondents
Heard at Ottawa, Ontario, on November 23, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on November 23, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20041123
Docket: A-534-04
Citation: 2004 FCA 394
CORAM: LÉTOURNEAU J.A.
ROTHSTEIN J.A.
NOËL J.A.
BETWEEN:
ERNST ZUNDEL
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on November 23, 2004)
[1] The motion to quash will be dismissed with costs.
[2] We are of the view that an appeal based on a reasonable apprehension of bias is an exception to the privative clause precluding an appeal from a determination that a security certificate is reasonable: see Canada v. Tobiass, [1997] 3 R.C.S. 391.
[3] We are not satisfied that this proceeding amounts to a re-litigation of issues previously decided so as to bar the present appeal: see Toronto (City) v. C.U.P.E., Local 79 (2003), 232 D.L.R. (4th) 385, at paragraphs 51 and 52.
[4] Turning to the appeal itself, the appellant has fallen substantially short of meeting the high threshold required to establish a reasonable apprehension of bias.
[5] Reading an isolated sentence in the designated judge's interim detention ruling as prejudging the final issue, when that sentence, read in context, merely restates the relevant statutory test applicable to a detention review, does not establish a reasonable apprehension of bias.
[6] Nor do we believe that the interruptions of Mr. Christie's testimony are suggestive of a reasonable apprehension of bias. Offering Mr. Christie as a witness, without relieving him from the solicitor-client privilege, creates a difficult situation to manage which called for the repeated intervention of the designated judge.
[7] The designated judge's duty of ensuring that protected information is not properly released explains most, if not all, of the other evidentiary rulings which the appellant has brought to our attention.
[8] Finally, tallying the number of interlocutory rulings and showing that a greater number has gone in favour of the other side does not establish a reasonable apprehension of bias.
[9] The appeal will be dismissed with costs.
[10] In view of this result, the pending stay application will be dismissed.
"Gilles Létourneau"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-534-04
Appeal from an Order of the Federal Court dated September 24, 2004, Federal Court File No.: DES-2-03
STYLE OF CAUSE: ERNST ZUNDEL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: NOVEMBER 23, 2004
REASONS FOR JUDGMENT LÉTOURNEAU J.A.
OF THE COURT: ROTHSTEIN J.A.
NOËL J.A.
DELIVERED FROM THE
BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
Mr. Peter Lindsay FOR THE APPELLANT
Ms. Chi-Kun Shi
Mr. Donald MacIntosh FOR THE RESPONDENT, MINISTER OF
Ms. Pam Larmondin CITIZENSHIP AND IMMIGRATION
Mr. James Todd
Mr. Lorne McClenaghan
Mr. Toby Hoffmann FOR THE RESPONDENT, SOLICITOR GENERAL OF CANADA
SOLICITORS OF RECORD:
Toronto, Ontario FOR THE APPELLANT
Mr. Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
Toronto, Ontario