Canada (Minister of Citizenship and Immigration) v. Tobiass et al., (1997) 218 N.R. 81 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday June 26, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 218 N.R. 81 (SCC);131 FTR 230;[1997] ACS no 82;JE 97-1836;151 DLR (4th) 119;118 CCC (3d) 443;[1997] SCJ No 82 (QL);40 Imm LR (2d) 23;EYB 1997-02452;10 CR (5th) 163;14 CPC (4th) 1;[1997] 3 SCR 391;218 NR 81;1997 CanLII 322 (SCC);1 Admin LR (3d) 1;74 ACWS (3d) 52

Can. (M.C.I.) v. Tobiass (1997), 218 N.R. 81 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1997] N.R. TBEd. SE.005

Erichs Tobiass (appellant) v. The Minister of Citizenship and Immigration (respondent)

Johann Dueck (appellant) v. The Minister of Citizenship and Immigration (respondent)

Helmut Oberlander (appellant) v. The Minister of Citizenship and Immigration (respondent) and The Canadian Jewish Congress (intervener)

(25811)

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

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

September 25, 1997.

Summary:

The Minister of Citizenship and Immigra­tion sought to revoke the per­manent resi­dency and Canadian citi­zenship of Tobiass, Dueck and Oberlander (the residents). The Minister applied for a declar­ation that the residents were admitted to Canada for per­manent residence and subsequently obtained Canadian citizenship by false rep­resentations, fraud or by knowingly conceal­ing material circum­stances. The Minister alleged that the residents had committed war crimes and crimes against humanity during World War II. The Associate Chief Justice of the Feder­al Court of Canada was assigned to hear the cases. While pre­liminary motions were ongoing, the Assistant Deputy Attorney General met with the Chief Justice of the Federal Court of Canada and discussed the cases. The residents were not notified of the meeting. The Assistant Dep­uty Attorney General expressed the Crown's concerns that the cases were not being dealt with expedi­tiously. The Chief Justice dis­cussed the Crown's concerns with the Asso­ciate Chief Justice. The Associate Chief Justice intended to give the residents' cases and other similar cases more priority. The residents applied for a stay of pro­ceedings under s. 50 of the Federal Court Act, alleging interfer­ence with judicial independence and an abuse of pro­cess.

The Federal Court of Canada, Trial Divi­sion, in a decision reported 116 F.T.R. 69, held that the judicial independence of the court was impaired. The court stayed the proceedings. The Crown appealed. Two of the residents, Dueck and Oberlander, applied to quash the appeals on the grounds that the court lacked jurisdiction to hear them and there was a reasonable apprehen­sion of bias on the part of the members of the court.

The Federal Court of Appeal, Pratte, J.A., dissenting in part, in a decision reported 208 N.R. 49, dismissed the application.

The Federal Court of Appeal, in a decision reported 208 N.R. 21, allowed the Crown's appeal, set aside the order of the Trial Divi­sion and dismissed the three motions for stay of proceedings. The residents appealed.

The Supreme Court of Canada dismissed the appeal. The court held that although the appearance of judicial independence was compromised, a stay was not the appropriate remedy. The court ordered that the matter be heard by another judge who was to ignore all directions given by the Chief Justice and the Associate Chief Justice. The court awarded costs to the residents.

Aliens - Topic 2504

Naturalization - General - Revocation - Appeals - The Minister sought to revoke the residents' permanent residency and their Ca­nadian citizenship, alleging false rep­resen­tations, fraud or conceal­ment of material circumstances and referred the matter under s. 18(1)(b) of the Citizenship Act - The trial judge stayed the proceed­ings on the grounds of a purported inter­ference with judicial independence by the Chief Justice and abuse of process - The Minis­ter appealed - The residents claimed that the appeal was barred by s. 18(3) of the Citizenship Act - The Supreme Court of Canada affirmed that the trial judge's decision was not based on s. 18(1) but was rather a decision under s. 50 of the Federal Court Act and was appealable under s. 27(1) of that Act - See paragraphs 44 to 66.

Aliens - Topic 4065

Practice - Judicial review and appeals - Stay of proceedings - [See third Practice - Topic 5277].

Courts - Topic 306

Judges - Independence of judiciary - The Supreme Court of Canada stated that the test for determining whether the appear­ance of judicial independence had been maintained was "whether a reasonable observer would perceive that the court was able to conduct its business free from the interference of the government and of other judges." - Two of the principles of professional conduct that had to be observed to maintain the appearance of judicial independence were: 1) counsel for one party should not discuss a particular case with a judge except with the knowl­edge and preferably with the participation of counsel for the other parties to the case and 2) a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views - See paragraphs 72 to 75.

Courts - Topic 308

Judges - Independence of judiciary - What constitutes interference with - The Minister sought to revoke the residents' permanent residency and Canadian citizen­ship - While preliminary motions were ongoing and without notice to the resi­dents, the Assistant Dep­uty Attorney Gen­eral met with the Chief Justice of the Federal Court and expressed the Crown's concerns that the cases were not proceed­ing expedi­tiously and suggested that a reference to the Supreme Court of Canada could be taken - The Chief Justice dis­cussed these concerns with the Associate Chief Justice (who was respon­sible for managing the cases) - The Associate Chief Justice agreed to proceed quicker - The residents alleged an interference with judicial independence - The Supreme Court of Canada held that the appearance of judicial independence was compromised - A reasonable observer would perceive that the Crown improperly and unduly influenced the Chief Justice and the Asso­ciate Chief Justice - See paragraphs 67 to 85.

Courts - Topic 314.1

Judges - Independence of judiciary - Individual independence - [See Courts - Topic 308].

Courts - Topic 691

Judges - Disqualification - Bias - Rea­sonable apprehension of bias - [See Courts - Topic 306].

Courts - Topic 1410

Administration - Role of Chief Justice - The Minister sought to revoke the resi­dents' permanent residency and Canadian citizenship - While preliminary motions were ongoing and without notice to the residents, the Assistant Dep­uty Attorney General met with the Chief Justice of the Federal Court and expressed the Crown's concerns that the cases were not proceed­ing expedi­tiously - The Chief Justice dis­cussed these concerns with the Associate Chief Justice (who was respon­sible for managing the cases) - The Associate Chief Justice agreed to proceed quicker - The residents alleged an interference with judicial independence - The Federal Court of Appeal held that the Chief Justice acted in his administrative capacity as president of the court - The Supreme Court of Canada held that although the Chief Jus­tice had such an administrative capacity, he and the Associate Chief Justice acted inappropriately - See paragraphs 75 to 76.

Courts - Topic 4032.1

Federal Court of Canada - Jurisdiction - Trial Division - Stay of proceedings - [See first Practice - Topic 5277].

Courts - Topic 4116

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Bars - Statu­tory prohibition on appeals - [See Aliens - Topic 2504].

Crown - Topic 5187

Officials and employees - Duties - Re­specting matters pending before courts - The Minister sought to revoke the resi­dents' permanent residency and Canadian citizenship - While preliminary motions were ongoing and without notice to the residents, the Assistant Dep­uty Attorney General met with the Chief Justice of the Federal Court and expressed the Crown's concerns that the cases were not proceed­ing expeditiously - The Chief Justice discussed these concerns with the Associ­ate Chief Justice (who was responsible for managing the cases) - The Department of Justice retained Dubin to report on com­munications between Department officials and the courts - Dubin's report was made public while the residents' cases were on appeal from the Federal Court of Appeal - The Supreme Court of Canada cautioned against members of government comment­ing on matters that were before the courts - See paragraph 114 to 118.

Practice - Topic 5277

Trials - Stay of proceedings - When available - Section 50(1)(b) of the Federal Court Act permitted a court to stay pro­ceedings where it was in the interest of justice that the proceedings be stayed - The Supreme Court of Canada stated that the principles that governed stays under s. 24(2) of the Charter and the common law also applied to stays under s. 50(1)(b) - The court reviewed the criteria that had to be met before a stay was appropriate - See paragraphs 88 to 92.

Practice - Topic 5277

Trials - Stay of proceedings - When available - The Supreme Court of Canada stated that "A stay is not a form of pun­ishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use puni­tive language at all, then probably the best way to describe a stay is as a specific deterrent -- a remedy aimed at preventing the perpetuation or aggravation of a par­ticular abuse. Admittedly, if a past abuse were serious enough, then public confi­dence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse suffi­cient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of jus­tice." - See paragraph 96.

Practice - Topic 5277

Trials - Stay of proceedings - When available - The Minister sought to revoke the residents' permanent residency and Canadian citizenship - While preliminary motions were ongoing and without notice to the residents, the Assistant Dep­uty Attorney General met with the Chief Jus­tice of the Federal Court and expressed the Crown's concerns that the cases were not proceeding expeditiously - The Chief Justice discussed these concerns with the Associate Chief Justice (who was respon­sible for managing the cases) - The resi­dents sought a stay of proceedings, alleg­ing interference with judicial independence and an abuse of process - The Supreme Court of Canada held that the appearance of judicial independence was compromised - See paragraphs 67 to 85 - The court held that a stay was not the appropriate remedy - The court ordered that the matter be heard by another judge who was to ignore all directions given by the Chief Justice and the Associate Chief Justice - See paragraphs 86 to 112.

Practice - Topic 5277.1

Trials - Stay of proceedings - Abuse of process - [See third Practice - Topic 5277].

Cases Noticed:

Wewayakum Indian Band v. Canada and Wewayatai Indian Band, [1989] 1 S.C.R. 322; 92 N.R. 241, refd to. [para. 48].

Roberts v. Canada - see Wewayakum Indian Band v. Canada and Wewayatai Indian Band.

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Ter­minal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 48].

Canadian Pacific Ltd. et al. v. Quebec North Shore Paper Co. et al., [1977] 2 S.C.R. 1054; 9 N.R. 471, refd to. [para. 48].

Canada v. McNamara Construction (West­ern) Ltd. et al., [1977] 2 S.C.R. 654; 13 N.R. 181, refd to. [para. 48].

Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173; 9 C.R.R.(2d) 149 (F.C.A.), refd to. [para. 52].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117, refd to. [para. 59].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; [1985] 6 W.W.R. 127; 21 C.C.C.(3d) 7; 20 D.L.R.(4th) 651; 47 C.R.(3d) 193, consd. [para. 61].

R. v. Hinse (R.), [1995] 4 S.C.R. 597; 189 N.R. 321, consd. [para. 64].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 49 C.R.(3d) 97; 23 C.C.C.(3d) 193, refd to. [para. 68].

Lippé et autres v. Québec (Procureur gé­néral) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 70].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1, refd to. [para. 71].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 87].

R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 87].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; [1996] 2 W.W.R. 153; 130 D.L.R.(4th) 235; 103 C.C.C.(3d) 1; 44 C.R.(4th) 1, refd to. [para. 89].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165; 49 C.C.C.(3d) 289; 70 C.R.(3d) 209, refd to. [para. 92].

Ruffo (Juge) v. Conseil de la magistrature et autres, [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 99].

R. v. Vermette, [1988] 1 S.C.R. 985; 84 N.R. 296; 14 Q.A.C. 161, refd to. [para. 102].

R. v. Hubbert (1975), 29 C.C.C.(2d) 279 (Ont. C.A.), refd to. [para. 102].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 105].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 108].

Attorney General v. Times Newspapers Ltd., [1973] 1 Q.B. 710 (C.A.), refd to. [para. 114].

Statutes Noticed:

Citizenship Act, R.S.C. 1985, c. C-29, sect. 18(1), sect. 18(3) [para. 45].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 27(1), sect. 50(1)(b) [para. 46].

Authors and Works Noticed:

Canada, House of Commons, Beauchesne, Rules & Forms of the House of Com­mons of Canada (6th Ed. 1989), p. 153 [para. 114].

Wilson, J.O., A Book for Judges (1980), p. 52 [para. 74].

Counsel:

Gesta J. Abols, for the appellant, Tobiass;

Donald B. Bayne, for the appellant, Dueck;

Michael Code, for the appellant, Ober­lander;

W. Ian C. Binnie, Q.C., for the respondent;

Ed Morgan, for the intervener.

Solicitors of Record:

Gesta J. Abols, Toronto, Ontario, for the appellant, Tobiass;

Bayne Sellar Boxall, Ottawa, Ontario, for the appellant, Dueck;

Sack Goldblatt Mitchell, Toronto, Ontario, for the appellant, Oberlander;

George Thomson, Toronto, Ontario, for the respondent;

Ed Morgan, Toronto, Ontario, for the intervener.

This appeal was heard on June 26, 1997, by Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the Court was delivered in both official languages by the Court on September 25, 1997.