Zündel v. Canada (Minister of Citizenship and Immigration) et al., (1996) 117 F.T.R. 129 (TD)

• Judge: Heald, D.J.
• Court: Federal Court (Canada)
• Case Date: August 01, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 117 F.T.R. 129 (TD)

Zündel v. Can. (M.C.I.) (1996), 117 F.T.R. 129 (TD)

MLB headnote and full text

Ernst Zündel (applicant) v. The Minister of Citizenship and Immigration (respondent) and The Security Intelligence Review Committee (Intervenor)

(T-567-96)

Indexed As: Zündel v. Canada (Minister of Citizenship and Immigration) et al.

Federal Court of Canada

Trial Division

Heald, D.J.

August 1, 1996.

Summary:

Zündel applied for citizenship. The Minister made a report under s. 19(2) of the Citizenship Act alleging that there were reasonable grounds to believe Zündel was a security threat. Zündel applied for prohibition and certiorari to prevent the Security Intelligence Review Committee from investigating and reporting on the Minister's allegation. The Minister applied to strike out eight affidavits filed by Zündel.

The Federal Court of Canada, Trial Division, struck out the eight affidavits. The court allowed Zündel's application for prohibition. The certiorari application was denied.

Editor's Note: For a prior decision in this matter see 109 F.T.R. 1.

Administrative Law - Topic 2087

Natural justice - Constitution of board or tribunal - Bias - Pursuant to s. 19 of the Citizenship Act the Security Intelligence Review Committee (SIRC) was required to investigate an allegation by the Minister that a citizenship applicant will engage in activity that constituted a security threat - The applicant, the Minister and CSIS were entitled to make representations - Following the investigation, the SIRC reported to the Governor in Council - After considering the report, the Governor in Council could declare that there were "reasonable and probable grounds to believe that the applicant will engage in activity that constitutes a security threat" thereby precluding the applicant from becoming a citizen - The Federal Court of Canada, Trial Division, held that the SIRC's function was adjudicative in nature and the reasonable apprehension of bias test applied - See paragraphs 40 to 53.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - Zündel applied for citizenship - The Minister alleged that there were reasonable grounds to believe Zündel was a security threat (Citizenship Act, 19(2)) - The Security Intelligence Review Committee (SIRC) was to investigate the Minister's allegation - The SIRC had previously written a report on the Heritage Front which identified Zündel as a "Holocaust denier, hate literature publisher and member of the radical right" - The report warned against potential harm from extreme right wing racist groups - Zündel applied for prohibition to prevent the SIRC from conducting its investigation alleging bias - The Federal Court of Canada, Trial Division, granted the prohibition order, holding that the report showed a reasonable apprehension of bias by the SIRC against Zündel - The court stated that parts of the report went so far as to demonstrate a prejudgment of the issues - See paragraphs 54 to 76.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - [See Administrative Law - Topic 2087 ].

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal - Bias - Prejudgment of matter - [See first Administrative Law - Topic 2088 ].

Administrative Law - Topic 3347

Judicial review - Practice - Parties - Zündel applied for citizenship - The Minister alleged that there were reasonable grounds to believe Zündel was a security threat (Citizenship Act, 19(2)) - Zündel applied for prohibition and certiorari to prevent the Security Intelligence Review Committee (SIRC) from investigating and reporting on the Minister's allegation - Zündel named the SIRC as a respondent - Pursuant to Canadian Human Rights Commission v. Canada (Attorney General) and Bernard (F.C.A.) a federal board under review could not be named as a respondent - The SIRC applied under rule 1611 to be named as an intervenor - The Federal Court of Canada, Trial Division, held that the SIRC failed to comply with rule 1611 - However, the court waived compliance with rule 1611 pursuant to rule 1619 and added the SIRC as an intervenor - See paragraphs 21 to 22.

Administrative Law - Topic 3350

Judicial review - Practice - Speedy or expedited hearing - Zündel applied for citizenship - The Minister alleged that there were reasonable grounds to believe Zündel was a security threat (Citizenship Act, 19(2)) - Zündel applied for prohibition and certiorari to prevent the Security Intelligence Review Committee (SIRC) from investigating and reporting on the Minister's allegation - Zündel was granted an expedited hearing and a timetable was set out - Zündel failed to file eight affidavits in compliance with the timetable - The Minister applied to strike out the affidavits - The Federal Court of Canada, Trial Division, struck out the affidavits where Zündel failed to account for the delay and the affidavits had no intrinsic worth to the application because they addressed irrelevant issues - See paragraphs 23 to 33.

Administrative Law - Topic 6447

Judicial review - Prohibition - Grounds for granting order - Bias - [See first Administrative Law - Topic 2088 ].

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - [See Administrative Law - Topic 3347 ].

Aliens - Topic 2546

Naturalization - Disqualifications - Security threat - [See Administrative Law - Topic 2087 and first Administrative Law - Topic 2088 ].

National Security - Topic 1108

Canadian Security Intelligence Service - Security intelligence review committee - Investigation of security threats - Aliens - [See Administrative Law - Topic 2087 and first Administrative Law - Topic 2088 ].

Practice - Topic 680

Parties - Adding or substituting parties - Intervenors - [See Administrative Law - Topic 3347 ].

Practice - Topic 2806

Curative provisions - For noncompliance with rules - [See Administrative Law - Topic 3347 ].

Practice - Topic 3604.7

Evidence - Affidavits - Time for filing - [See Administrative Law - Topic 3350 ].

Cases Noticed:

Canadian Human Rights Commission v. Canada (Attorney General) and Bernard, [1994] 2 F.C. 447; 164 N.R. 361 (F.C.A.), folld. [para. 21].

Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al. (1994), 77 F.T.R. 218 (T.D.), appld. [para. 26].

Ethier v. Royal Canadian Mounted Police (Commissioner), [1993] 2 F.C. 659; 151 N.R. 374 (F.C.A.), refd to. [para. 31, footnote 19].

Lecoupe v. Canadian Armed Forces (1994), 81 F.T.R. 91 (T.D.), refd to. [para. 31, footnote 19].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1991] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 40].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 41, footnote 23].

MacBain v. Canadian Human Rights Commission et al., [1985] 1 F.C. 856; 62 N.R. 117 (F.C.A.), refd to. [para. 41, footnote 23].

Arthur v. Minister of Employment and Immigration, [1993] 1 F.C. 94; 147 N.R. 288 (F.C.A.), refd to. [para. 41, footnote 23].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 75 D.L.R.(4th) 385, refd to. [para. 42].

Save Richmond Farmland Society et al. v. Richmond (Township) et al., [1990] 3 S.C.R. 1213; 116 N.R. 88, refd to. [para. 49].

Bennett et al. v. British Columbia Securities Commission (1992), 18 B.C.A.C. 191; 31 W.A.C. 191; 94 D.L.R.(4th) 339 (C.A.), refd to. [para. 66].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, dist. [para. 67].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b), sect. 2(d) [para. 1, footnote 1].

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 2(c) [para. 15]; sect. 34(1) [para. 8]; sect. 38 [para. 9]; sect. 39(2), sect. 39(3) [para. 11]; sect. 42 [para. 10]; sect. 43, sect. 44, sect. 48, sect. 49, sect. 50, sect. 51 [para. 11].

Citizenship Act, R.S.C. 1985, c. C-29, sect. 19, sect. 20 [para. 4].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 18.1 [para. 1].

Federal Court Rules, rule 1611 [para. 21, footnote 15].

Counsel:

Douglas H. Christie, for the applicant;

Don Rennie, for the respondent;

Gordon Cameron, for the intervenor, Security Intelligence Review Committee.

Solicitors of Record:

Douglas Christie, Victoria, British Columbia, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, Minister of Citizenship and Immigration;

Blake, Cassels & Graydon, Ottawa, Ontario, for the intervenor, Security Intelligence Review Committee.

This application was heard in Ottawa, Ontario, on July 10 and 11, 1996, by Heald, D.J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on August 1, 1996.