Judgments

[1996] 2 F.C. 729

T-569-95

The Minister of Citizenship and Immigration (Applicant)

v.

Erichs Tobiass (Respondent)

T-866-95

The Minister of Citizenship and Immigration (Applicant)

v.

Helmut Oberlander (Respondent)

T-938-95

The Minister of Citizenship and Immigration (Applicant)

v.

Johann Dueck (Respondent)

Indexed as: Canada (Minister of Citizenship and Immigration) v. Tobiass (T.D.)

Trial Division, Cullen J.—Ottawa, July 4, 1996.

Judges and Courts — Judicial independence — Clandestine meeting between Chief Justice of Federal Court and Assistant Deputy Attorney General to discuss cases pending before Associate Chief Justice in which Crown a party, and subsequent intervention by Chief Justice with A.C.J. — Stay of citizenship revocation proceedings granted as judicial independence compromised — Court must safeguard own independence, not rely upon Canadian Judicial Council or provincial law society.

Practice — Stay of proceedings — Clandestine meeting between Chief Justice of Federal Court and Assistant Deputy Attorney General to discuss citizenship revocation cases pending before Associate Chief Justice, subsequent intervention by C.J. with A.C.J., serious breach of judicial independence meeting “clearest of cases” threshold articulated in case law for stay of proceedings.

Citizenship and Immigration — Status in Canada — Citizens — Importance to Canadian society of cases dealing with revocation of citizenship said to have been obtained by concealing war crimes, crimes against humanity and fear of witnesses dying from old age no justification for clandestine meeting between Chief Justice of Federal Court and Assistant Deputy Attorney General to discuss accelerating pace of cases’ progress in Federal Court, and subsequent intervention by Chief Justice with presiding judge (Associate Chief Justice) — Stay of proceedings appropriate remedy for such serious breach of judicial independence.

The Minister of Citizenship and Immigration had made application for the revocation of the citizenship of each of the three applicants for having obtained citizenship by concealing material circumstances: that they had committed war crimes or crimes against humanity. Notices of intention to revoke the citizenship of the respondents were sent out in January 1995 and various interlocutory motions were still being argued in May 1996. Crown counsel expressed to the presiding judge, the Associate Chief Justice, concern over the long delay and the urgency of getting on with the matter. Counsel’s fear was that aging Crown witnesses might die or become unable to testify and that the cases might never be heard on the merits. The Associate Chief Justice nevertheless continued to set dates in the usual manner. An Assistant Deputy Attorney General then, without notice to the parties, met with the Chief Justice of the Federal Court and admonished him that it was in the public interest to accelerate matters as “the potential for embarrassment” was “very high should it be seen that the Justice system is unable to respond to these urgent cases in a timely way” and adding that the Attorney General of Canada was being asked to consider taking a reference to the Supreme Court of Canada to determine certain preliminary points of law primarily because the Federal Court Trial Division was unable or unwilling to proceed with these cases expeditiously. The Chief Justice then discussed these concerns with the Associate Chief Justice, who stated that he would take all reasonable steps to avoid a reference to the Supreme Court and henceforth assign the highest priority to cases of this nature. The discussions and understandings arrived at were confirmed in an exchange of correspondence which was disclosed to counsel for the respondents about a week later by counsel for the Minister. The Associate Chief Justice decided that in light of the circumstances, carriage of the cases should be turned over to another judge.

These were motions for stays of proceedings on the basis that judicial independence had been compromised.

Held, the motions should be allowed.

The issue was whether the correspondence between and conduct of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General was such as to compromise judicial independence.

Judicial independence encompasses both individual and institutional elements. An individual judge must hear and decide cases without interference from outsiders, including the government, the Canadian Judicial Council, a provincial law society, other judges or parties to the litigation. And the court, as the protector of the Constitution, must be institutionally independent from the other branches of government. In both cases, the objective is that justice should not only be done but should manifestly and undoubtedly be seen to be done. This appeared to be the first case in which an issue involving individual judicial independence had come before a Canadian court. This case was about the liberty of an individual judge to hear and decide the cases, free of interference by the Chief Justice of his Court or a senior law officer of the Crown.

The question was not whether the Associate Chief Justice was actually influenced or would have acted unfairly in any way, but whether a reasonable person, having read the correspondence between the Chief Justice and the Assistant Deputy Attorney General, would conclude that a judge of this Court could act independently in adjudicating the respondents’ cases. The conlusion was that a reasonable person would believe that there indeed had been judicial interference and that the respondents would not be coming before an independent court.

The Chief Justice and the Assistant Deputy Attorney General were well aware that the respondents’ cases were actively being considered by the Associate Chief Justice. Given this context, and the admonitions set out in the case law concerning judicial independence and non-interference by government, it could not reasonably be asserted that the Chief Justice and the Assistant Deputy Attorney General were unaware that their meeting and discussions were patently wrong.

A reasonable person would conclude, following the discussion between the Chief Justice and the Associate Chief Justice, that now that the latter “appreciated” the “urgency of dealing with these matters as expeditiously as the Government would like”, he would feel obliged to hurry the respondents’ cases along, perhaps to their detriment.

The influence or pressure that was brought to bear on the Associate Chief Justice was especially egregious, given that the statements were conveyed by the Chief Justice of the Federal Court, on the urging of a senior government official who also acted for one of the parties. A reasonable person would conclude that even if the Associate Chief Justice removed himself from these three cases, another judge could be perceived as responding to the pressure that had been brought to bear by the Chief Justice and the Assistant Deputy Attorney General.

The importance of the cases did not justify overlooking the transgressions. The fact that the accusations are so serious demands that the judge who hears these matters be convinced by the evidence alone, not by pressure brought to bear by any outsider.

As to whether a stay of proceedings is the appropriate remedy, the Supreme Court of Canada has held that a stay should be granted where “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, or where the proceedings are “oppressive or vexatious”. A stay should, however, be ordered only the “clearest of cases”.

A complaint to or even disciplinary proceedings before the Canadian Judicial Council or the Law Society of Upper Canada would not meet the requirements of justice herein. Such institutions are independent of this Court, and the Court cannot, and should not, seek to influence or burden parallel proceedings that may be commenced. Most importantly, this Court must itself safeguard its own independence. The public must be assured that anyone coming before the Federal Court of Canada will be treated fairly and that the government or another powerful party will not enjoy a special advantage.

The clandestine meeting and the subsequent intervention with the Associate Chief Justice was a serious breach of judicial independence. This affront to judicial independence was the “clearest of cases” and a stay of proceedings, in each of the respondents’ cases, had to be granted.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24(1).

Federal Court Act, R.S.C., 1985, c. F-7, s. 50.

CASES JUDICIALLY CONSIDERED

APPLIED:

Valente v. The Queen et al. [1985] 2 S.C.R. 673; (1985), 52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d) 193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64 N.R. 1; 14 O.A.C. 79; Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; Beauregard v. Canada, [1986] 2 S.C.R. 56; (1986), 30 D.L.R. (4th) 481; 26 C.R.R. 59; 70 N.R. 1; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; (1989), 94 N.S.R. (2d) 1; 61 D.L.R. (4th) 688; 41 Admin. L.R. 236; 50 C.C.C. (3d) 449; 72 C.R. (3d) 129; 100 N.R. 81; R. v. Lippé, [1991] 2 S.C.R. 114; (1991), 64 C.C.C. (3d) 513; 5 C.R.R. (2d) 31; 5 M.P.L.R. (2d) 113; 128 N.R. 1; 39 Q.A.C. 241; Rex v. Sussex Justices. Ex parte McCarthy, [1924] 1 K.B. 256; R. v. Jewitt, [1985] 2 S.C.R. 128; (1985), 20 D.L.R. (4th) 651; [1985] 6 W.W.R. 127; 21 C.C.C. (3d) 7; 47 C.R. (3d) 193; 61 N.R. 159; R. v. Young (1984), 46 O.R. (2d) 520; 13 C.C.C. (3d) 1; 40 C.R. (3d) 289; 10 C.R.R. 307; 3 O.A.C. 254 (C.A.); R. v. Keyowski, [1988] 1 S.C.R. 657; [1988] 4 W.W.R. 97; (1988), 65 Sask. R. 122; 40 C.C.C. (3d) 481; 62 C.R. (3d) 349; 32 C.R.R. 269; 83 N.R. 296.

CONSIDERED:

R. v. O’Connor, [1995] 4 S.C.R. 411; [1996] 2 W.W.R. 153.

REFERRED TO:

R. v. Bain, [1992] 1 S.C.R. 91; (1992), 87 D.L.R. (4th) 449; 69 C.C.C. (3d) 481; 10 C.R. (4th) 257; 7 C.R.R. (2d) 193; 133 N.R. 1; 51 O.A.C. 161; R. v. Généreux, [1992] 1 S.C.R. 259; (1992), 88 D.L.R. (4th) 110; 70 C.C.C. (3d) 1; 8 C.R.C. (2d) 89; 133 N.R. 241; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; (1995) 122 D.L.R. (4th) 129; 26 Admin. L.R. (2d) 1; [1995] 2 C.N.L.R. 92; 177 N.R. 325; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267.

MOTIONS for stays of citizenship revocation proceedings for breach of judicial independence. Motions allowed.

COUNSEL:

Christopher A. Amerasinghe, Q.C., Paul J. Evraire, James Brender, Cheryl Mitchell, Hana Gertler, Donald A. MacIntosh for applicant.

Gesta J. Abols for respondent Erichs Tobiass.

Robert B. McGee, Q.C for respondent Helmut Oberlander.

Donald B. Payne & Michael Davies for respondent Johann Dueck.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Gesta J. Abols, Toronto, for respondent Erichs Tobiass.

Robert B. McGee, Q.C., Toronto, for respondent Helmut Oberlander.

Bayne, Sellar, Boxall, Ottawa, for respondent Johann Dueck.

The following are the reasons for order rendered in English by

Cullen J.: These motions for stays of proceedings were brought by the respondents[1] on May 3, 1996 (Dueck) and May 9, 1996 (Tobiass and Oberlander) and are part of larger applications by the Minister of Citizenship and Immigration for revocations of citizenship of the three applicants. Although I need only deal with the motions for stays, I will briefly set out the history of the proceedings in this Court in order to give this matter some perspective.

BACKGROUND

The Minister filed notices of reference for each of the respondents, seeking a declaration that they were admitted to Canada for permanent residence and subsequently obtained Canadian citizenship by false representations, fraud, or by knowingly concealing material circumstances. Although the notices were filed on different dates—March 20, 1995 in the case of Tobiass, April 24, 1995 in the case of Oberlander and May 1, 1995 in the case of Dueck—the substance of each notice is the same. The Minister then filed a notice of motion for directions in each of the three cases. The respondents, in turn, filed notices of motions for disclosure of certain documents. On June 30, 1995, the Associate Chief Justice, who was responsible for each of the three cases, ordered the matters joined for the resolution of the procedural questions including the issue of disclosure. Soon after, the respondents filed motions for stays of proceedings pursuant to section 50 of the Federal Court Act [R.S.C., 1985, c. F-7] and subsection 24(1) 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.) [R.S.C., 1985, Appendix II, No. 44]].

The Associate Chief Justice decided that the motions for disclosure would be heard first, followed by the motions for stay, followed by the motions for directions. In my view, this was a logical way to proceed. On December 12, 1995, oral argument commenced on the motions for disclosure. Since only counsel for Dueck had sufficient time to make submissions, the continuation of the oral arguments was set for May 15 and 16, 1996. In the interim, however, on March 1, 1996, a meeting was held, followed by an exchange of correspondence, between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General. It was this turn of events which lead to the present motions for stays of proceedings.

This meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General was held without notice to the parties. The cases that were pending before the Associate Chief Justice were discussed. This meeting was confirmed in an exchange of correspondence which was disclosed to counsel for the respondents about a week later by counsel for the Minister. Although the letters are lengthy, I have reproduced them verbatim since they are at the heart of the motion before me:

March 1, 1996                                          HAND DELIVERED

The Honourable Chief Justice J.A. Isaac

Federal Court of Canada

Supreme Court of Canada Building

Ottawa, Ontario

K1A 0H9

Dear Chief Justice Isaac:

Re: Erichs Tobiass, T-569-95, Helmut Oberlander, T-866-95 and Johann Dueck, T-938-95

Further to our meeting of this morning in which I advised you that the Attorney General of Canada is being asked to consider taking a Reference to the Supreme Court of Canada to determine some preliminary points of law primarily because the Federal Court Trial Division is unable or unwilling to proceed with the subject cases expeditiously.

Notices of Intention to revoke the citizenship of the above-named individuals were sent out in January of 1995. They were persons who had been investigated in connection with allegations of war crimes and crimes against humanity during the second world war. Over the course of the next three months the cases were referred to the Federal Court. After complying with the requirements of Rule 920, Motions were brought requesting directions from the Court regarding discovery of evidence and taking evidence on commission. The Motions were filed April 13th (Tobiass), May 11th (Oberlander) and May 18th (Dueck), 1995 respectively. These Motions were necessary as there are no procedural rules governing these proceedings. We suggested the procedure followed in the Luitjens case be followed. Our Motion was originally set down for argument on June 30, 1995. Associate Chief Justice Jerome had become seized of the three cases and determined to hear all preliminary motions regarding them. On June 30th, counsel for Dueck argued that the three cases should be joined and also indicated that he wished to bring a Motion to stay the proceedings for abuse of process. Jerome, A.C.J. joined the three cases and granted adjournments over the objections of our counsel. September 15, 1995 was set as the date for filing the facta and in a tele-conference on October 4, 1995 he set December 12, 1995 as the date on which argument was to be heard.

On December 12th, counsel for Dueck was permitted to argue all day and it was necessary to set the matter over for continuation. Jerome, A.C.J. indicated that the continuing date would be in February of 1996 despite our request for an earlier date and having regard to the fact that counsel for Dueck was available in early January. The Court declined to fix a date for continuation while all parties were present. When our counsel called the Court in January of 1996 requesting a date for continuation, he was advised several days later that argument had been set down for May 15th and 16th. We wrote the Court expressing concern about the long day [sic] and the urgency of proceeding with this matter. We suggested concluding the argument by written submissions. Counsel for Mr. Dueck objected and Jerome, A.C.J. indicated that even with written submissions he would want oral argument and on February 18th via tele-conference with all parties he ordered that the dates of May 15 and 16 stand.

There are likely to be approximately 12 similar cases brought to the Federal Court with as many as 6 persons being given notice during the course of this year.

We are very concerned if these cases are not dealt with expeditiously they will never be heard on their merits. A crucial witness on the Tobiass case has cancer and may not be able to testify. In the Dueck case one key witness has died, one is in hospital and two others are so ill that they are unable to travel. Our counsel has estimated that at the current pace of proceeding and considering appeals in respect to interlocutory matters it will be years before these matters can be heard on their merits.

As you know, there is great public interest in seeing these cases disposed of on their merits and the potential for embarrassment is very high should it be seen that the Justice system is unable to respond to these urgent cases in a timely way.

I would appreciate any assistance you can offer.

Yours very truly,

J.E. Thompson

Assistant Deputy Attorney General

Civil Litigation

(613) 957-4840/Fax 941-1972

BY HAND                                                  March 1, 1996

Mr. J.E. (Ted) Thompson, Q.C.

Assistant Deputy Attorney General

Civil Litigation Section

Department of Justice

Ottawa K1A 0H8

Dear Mr. Thompson,

Re: Erichs Tobiass, T-569-95, Helmut Oberlander, T-866-95 and Johann Dueck, T-938-95

I refer to our discussions this morning and to your subsequent letter concerning these matters.

I have discussed your concerns with the Associate Chief Justice and, like me, he is prepared to take all reasonable steps possible to avoid a Reference to the Supreme Court of Canada on these matters.

The Associate Chief Justice has informed me that there are now before the Court five citizenship revocation cases—the three mentioned in your letter which are being dealt with by Mr. Amerasinghe and, two earlier ones: one is being dealt with by Ms. Charlotte Bell (Khalil) and the other by Mr. Amerasinghe (Nemsila). The Associate Chief Justice has heard all of the evidence and argument in Nemsila but he had been asked by counsel for Nemsila to defer judgment in that case until Khalil has been concluded. Argument has commenced in that latter case and has been adjourned to 29 April for continuation.

In light of the concerns expressed in your letter the Associate Chief Justice will meet with Ms. Bell, and Ms. Jackman who appears for the Respondent, early next week to fix an early date for final argument. If an early date cannot be fixed he will give judgment in Nemsila and then deal with Khalil at the earliest possible date.

As regards the three cases about which you wrote, the Associate Chief Justice says firstly, that he did not fully appreciate until he read your letter, the urgency of dealing with these matters as expeditiously as the Government would like. However, now that he is aware he will devote one week from 15 May to deal with these cases not only with respect to the preliminary points but also with respect to the merits. Finally, he has authorized me to say that additional cases of this class coming into the Court will be given the highest priority in light of the concerns expressed in your letter.

Yours truly,

Julius A. Isaac

c.c.—The Hon. James A. Jerome

Associate Chief Justice

Once the letters were disclosed, a flurry of correspondence ensued between the parties. On April 30, 1996, the parties convened before the Associate Chief Justice with the intention of deciding how to proceed with these cases. At this hearing in Toronto, counsel for the respondents submitted that not only had the Associate Chief Justice done nothing wrong, but that he had been wronged instead. Counsel also suggested that the Associate Chief Justice stay on and hear these cases, including the present stay applications which, although they had not yet been filed, were soon to be before the Court. Counsel for the Minister also had no objection to the Associate Chief Justice remaining seized of the proceedings. The Associate Chief Justice, however, decided that, in light of the circumstances, carriage of these cases should be turned over to another judge. The parties were notified of this decision on May 6, 1996.

Before turning to the merits of this motion, I think it important to point out that neither this Court nor the parties are aware of exactly what transpired during the meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General, save what is disclosed in the letters reproduced in these reasons. The Minister of Justice on May 29, 1996 appointed the former Chief Justice of the Ontario Court of Appeal, Charles Dubin, to inquire into the matter. I further understand that a complaint has been submitted to the Canadian Judicial Council. However, the findings of the Dubin inquiry or the decision of the Canadian Judicial Council are not material to the motion before me. I accept the submissions of counsel for the respondents that the content of these letters, alone, forms the basis of this motion.

The motion raises two issues:

(1) whether the correspondence between and conduct of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General is conduct which compromises judicial independence; and

(2) whether the correspondence between and conduct of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General constitutes an abuse of process.

Counsel were agreed that if either one of these questions was answered in the affirmative, the respondents were entitled to stays of proceedings.

JUDICIAL INDEPENDENCE

Counsel directed this Court to a number of Supreme Court of Canada cases which addressed the issue of judicial independence. I have found the statements of principle concerning judicial independence to be instructive although, in each case, the Supreme Court was addressing a situation far removed from the one facing this Court.

Valente v. The Queen et al., [1985] 2 S.C.R. 673, is one of the earliest cases in which the Supreme Court sought to clarify the meaning of judicial independence. The judgment of the Court was delivered by Le Dain J. who identified, at page 687, two components of judicial independence:

It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government.

His Lordship went on to confirm that the test for independence is the same as that set out for impartiality by Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369 and affirmed in Valente, at pages 684 and 689:

… the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude …”

It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.

Mr. Justice Le Dain’s observations were affirmed by Dickson C.J.C., in Beauregard v. Canada, [1986] 2 S.C.R. 56. The concept of individual independence was discussed in the following terms, at page 69:

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider—be it government, pressure group, individual or even another judge—should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence. Nevertheless, it is not the entire content of the principle.

His Lordship went on to discuss institutional, or collective, independence, at page 70:

The rationale for this two-pronged modern understanding of judicial independence is recognition that the courts are not charged solely with the adjudication of individual cases. That is, of course, one role. It is also the context for a second, different and equally important role, namely as protector of the Constitution and the fundamental values embodied in it—rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important. In other words, judicial independence is essential for fair and just dispute-resolution in individual cases. It is also the lifeblood of constitutionalism in democratic societies.

The Supreme Court next considered judicial independence in MacKeigan v. Hickman, [1989] 2 S.C.R. 796. Although judicial independence is closely related to impartiality, the two components are not synonymous. McLachlin J. clarified this point, at page 826:

It should be noted that the independence of the judiciary must not be confused with impartiality of the judiciary. As Le Dain J. points out in Valente v. The Queen, impartiality relates to the mental state possessed by the judge; judicial independence, in contrast, denotes the underlying relationship between the judiciary and other branches of government which serves to ensure that the court will function and be perceived to function impartially. Thus the question in a case such as this is not whether the government action in question would in fact affect a judge’s impartiality, but rather whether it threatens the independence which is the underlying condition of judicial impartiality in the particular case.

Judicial independence, in Her Ladyship’s view [at page 828], demands the “avoidance of incidents and relationships which could affect the independence of the judiciary in relation to the two critical judicial functions—judicial impartiality in adjudication and the judiciary’s role as arbiter and protector of the Constitution.”

In R. v. Lippé, [1991] 2 S.C.R. 114, the Court affirmed its two-pronged approach to judicial independence and also considered from whom the judiciary should be independent. In the view of Lamer C.J., with whom Sopinka J. concurred, the judiciary should be independent of “the government”, which includes not only the executive and legislative branches, but also other regulatory or supervisory bodies. The Chief Justice states, at page 138 (emphasis in the original):

By “government”, in this context, I am referring to any person or body, which can exert pressure on the judiciary through authority under the state. This expansive definition encompasses, for example, the Canadian Judicial Council or any Bar Society. I would also include any person or body within the judiciary which has been granted some authority over other judges; for example, members of the court must enjoy judicial independence and be able to exercise their judgment free from pressure or influence from the Chief Justice.

Gonthier J., with whom La Forest and L’Heureux-Dubé JJ. concurred, would have adopted a more expansive appreciation of judicial independence to include independence not only from “the government” as defined by the Chief Justice of the Supreme Court, but also from parties to the litigation. The decision in Lippé also affirmed the principle, first set out in Valente, that the test for assessing independence was the same as that for impartiality.

The decision in Lippé was followed by four other Supreme Court decisions on which counsel relied: R. v. Bain, [1992] 1 S.C.R. 91; R. v. Généreux, [1992] 1 S.C.R. 259; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; and Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267. In my view, while these cases are relevant, they rely on the principles of judicial independence established by the earlier case law.

CONCLUSIONS ON JUDICIAL INDEPENDENCE

From the jurisprudence, I have taken the following principles. Judicial independence encompasses both individual and institutional elements. First, an individual judge must hear and decide the cases that come before him or her without interference from outsiders, including the government, the Canadian Judicial Council, a provincial bar society, other judges or parties to the litigation. Second, the court, as the protector of the Constitution, must be institutionally independent from the other branches of government. While judicial independence is related to impartiality, the two concepts are not identical. Impartiality, or bias, concerns an individual judge’s state of mind; independence refers to the underlying relationship between the judiciary and the government, broadly defined. Both independence and impartiality are to be measured objectively, in that a reasonable person must perceive that both individual judges and the court as an institution adjudicate and function in an atmosphere free from actual or perceived influences. As stated in Rex v. Sussex Justices. Ex parte McCarthy, [1924] 1 K.B. 256, at page 259, and paraphrased in countless other decisions: “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

I turn now to the case at bar. As I have already observed, supra, the Supreme Court of Canada has not been faced with a situation such as the one before this Court. Indeed, the Supreme Court has only been called upon to analyze questions concerning the “second prong” of judicial independence, that being institutional independence. This is, so far as I know, the first case where the “first prong” of judicial independence—individual independence—is before a Canadian court.

Counsel for the Minister submitted that so long as this Court is structured to require an oath of office, ensure security of tenure, security of remuneration and administrative control—the “essential conditions” of judicial independence discussed in Valente—judicial independence is not compromised. In my view, this argument skirts the true issue in this case. This is not a case about the institutional independence of this Court; this is about the liberty of an individual judge to hear and decide the cases, free of interference from the Chief Justice of the Federal Court or the Assistant Deputy Attorney General.

The question is not whether the Associate Chief Justice was influenced, or would have been influenced, by what transpired between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General of Canada if he had maintained carriage of these cases. There is no persuasive evidence in the record that the Associate Chief Justice was actually influenced or that he would have acted unfairly in any way. Rather, the question before me is: would a reasonable person, having read the correspondence between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General of Canada, conclude that a judge of this Court could act independently in adjudicating the respondents’ cases? Despite the able arguments of counsel for the Minister, I am satisfied that a reasonable person would believe there has been judicial interference and these three respondents would not be coming before an independent court.

The meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General took place without notice to the parties to the litigation, at a point in the proceedings where a number of judicial decisions concerning the respondents’ cases had already been made. The Associate Chief Justice had already ruled on joining the cases, decided in which order the motions would be heard, determined that submissions would take place orally and not in writing, heard argument for one full day and set down the matter for continuation, over the protestations of counsel for the Minister. As the correspondence which followed the meeting indicates, the Chief Justice of the Federal Court and the Assistant Deputy Attorney General were well aware that the respondents’ cases were actively being considered by the Associate Chief Justice. Given this context, and the admonitions set out in the case law concerning judicial independence and non-interference by the government, it cannot reasonably be asserted that the Chief Justice of the Federal Court and the Assistant Deputy Attorney General were unaware that their meeting and discussions were patently wrong.

Following that meeting, the Chief Justice of the Federal Court intervened and related the Government’s concerns regarding the conduct of the respondents’ cases to the Associate Chief Justice. According to the Chief Justice of the Federal Court, the Associate Chief Justice promised to deal with the pending matters expeditiously and would “devote one full week from 15 May to deal with these cases not only with respect to the preliminary points but also with respect to the merits.” In my view, a reasonable person would conclude that the Associate Chief Justice, now that he “appreciated” the “urgency of dealing with these matters as expeditiously as the Government would like,” would feel obliged to hurry the respondents’ cases along, perhaps to their detriment.

The interference by the Chief Justice of the Federal Court and the Assistant Deputy Attorney General cannot be excused by saying that the actions or decisions of the Associate Chief Justice were delaying the respondents’ cases. First, I cannot conclude that the cases were progressing unusually slowly or that the Associate Chief Justice was acting negligently. The motions pending in the respondents’ cases concern questions of evidence, disclosure and the Charter; these are not matters which can be resolved quickly. Second, even if the cases were progressing too slowly for the Government’s liking, the proper course of action would have been to seek a reference to the Supreme Court of Canada or to try to reach a scheduling arrangement with the other parties. To approach the Chief Justice of the Federal Court without notice to the parties or to issue a veiled threat of a reference to the Supreme Court is not the solution.

The influence or pressure that was brought to bear on the Associate Chief Justice is especially egregious, given that the statements were conveyed by the Chief Justice of the Federal Court. Although counsel for the Minister submitted that the Associate Chief Justice, pursuant to the Federal Court Act, is the President of the Trial Division and is not subject to the supervision or direction of the Chief Justice of the Federal Court, to rely on legal formality obscures the reality of the situation. This is not an instance where a judge of equal rank expressed his or her ideas on a pending case or gave unsolicited advice to another judge. Here, the information came directly from the head of this Court, on the urging of a senior government official who also acts for one of the parties. A reasonable person would conclude that even if the Associate Chief Justice removed himself from these three cases, another judge of this Court could be perceived as responding to the pressure that was brought to bear by the Chief Justice of the Federal Court and the Assistant Deputy Attorney General.

It is not sufficient to say that the respondents’ cases are of such importance to Canadian society that the transgressions of the Chief Justice of the Federal Court and the Assistant Deputy Attorney General should be overlooked. In my view, the fact that the accusations against the respondents are so serious demands a very high level of judicial independence. Despite the Government’s protestations that the respondents’ citizenships are sought to be revoked solely on the basis that they made false representations, committed fraud, or knowingly concealed material circumstances, this Court and the general public are well aware that the false representations, fraud or material circumstances relate to alleged war crimes or crimes against humanity. These are heinous acts and ones which, in my view, should not go unpunished. But the fact that these crimes are so serious and carry with them such moral disapprobation also demands that the judge who hears them is convinced by the evidence alone, and not by pressure that was brought to bear by any outsider.

Having concluded that the judicial independence of the Court has been impaired, I now turn to the question of a remedy.

STAY OF PROCEEDINGS

Paragraph 50(1)(b) of the Federal Court Act provides:

50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,

(b) where for any other reason it is in the interest of justice that the proceedings be stayed.

The power to grant a stay of proceedings as a remedy for an abuse of process has been the focus of Supreme Court of Canada jurisprudence. In R. v. Jewitt, [1985] 2 S.C.R. 128, the Court [at page 135] adopted the statements of the Ontario Court of Appeal in R. v. Young (1984), 46 O.R. (2d) 520 [at page 551], finding that a stay should be granted where “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, or where the proceedings are “oppressive or vexatious”. The Court in Jewitt [at page 137] also cautioned that this power should only be exercised in the “clearest of cases”. Stays for abuse of process, however, are not limited to cases where there is evidence of prosecutorial misconduct. In R. v. Keyowski , [1988] 1 S.C.R. 657, at page 659, Wilson J. made clear that bad faith on the part of the Crown is only one relevant consideration:

To define “oppressive” as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine. In this case, for example, where there is no suggestion of misconduct, such a definition would prevent any limit being placed on the number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account when a court is called upon to consider whether or not in a particular case the Crown’s exercise of its discretion to re-lay the indictment amounts to an abuse of process.

A prosecution should be set aside because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.

The most recent Supreme Court of Canada case dealing with stays for abuse of process is R. v. O’Connor, [1995] 4 S.C.R. 411. In that case, the Court did not grant a stay of proceedings where the Crown had failed to make full disclosure promptly. The Court, while finding prosecutorial conduct to be wrong, did not find a stay to be warranted. Instead, the Court noted that there were a number of “less drastic” remedies than a stay of proceedings.

Counsel for the Minister acknowledged that the meeting and exchange of correspondence between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General should never have occurred and was plainly wrong. Despite this admission, however, counsel for the Minister argued that the case at bar did not meet the “clearest of cases” threshold articulated in Jewitt and urged this Court to fashion a “less drastic” remedy than a stay of proceedings, as provided for in O’Connor .

I have carefully considered whether a remedy, other than a stay of proceedings, would meet the requirements of justice. For example, would a complaint or disciplinary proceedings before the Canadian Judicial Council or Law Society of Upper Canada remedy the breach of judicial independence? I have concluded that they would not. First, the jurisdiction and proceedings of the Canadian Judicial Council or the Law Society are independent of this Court. This Court cannot, and should not, seek to influence or burden parallel proceedings that may or may not be commenced. Second, and most importantly, this Court must safeguard its own independence. It must take responsibility for its own integrity and not leave the sound administration of justice in the hands of another body. To do otherwise would, in my opinion, weaken judicial independence and leave the impression that transgressions of the Court’s integrity may be reprimanded but, ultimately, will be forgotten. The public must be assured that anyone coming before this Court will be treated fairly and that the Government or another powerful party will not enjoy a special advantage.

As I have already made clear, the clandestine meeting between the Chief Justice of the Federal Court and the Assistant Deputy Attorney General, and the subsequent intervention with the Associate Chief Justice, was a serious breach of judicial independence. In my view, this affront to judicial independence is the “clearest of cases” and a stay of proceedings, in each of the three respondents’ cases, will be granted.

Having reached the conclusion that judicial independence was impaired in the respondents’ cases and that a stay of proceedings is a proper remedy, the respondents’ motions are granted.

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