Judgments

[1996] 3 F.C. 215

T-567-96

Ernst Zündel (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

and

The Security Intelligence Review Committee (Intervenor)

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

Trial Division, Heald D.J.—Ottawa, June 10, 11 and August 1, 1996.

Citizenship and Immigration — Status in Canada — Citizens — Denial of citizenship application — In Minister’s report under Citizenship Act, s. 19(2)(a), applicant considered threat to security of Canada — SIRC prohibited from investigating, reporting thereon to Governor in Council — Reasonable apprehension of bias as in anterior report on Heritage Front, SIRC made numerous comments on applicant indicating latter effectively considered threat to security of Canada.

Security intelligence — SIRC prohibited from investigating, reporting to Governor in Council on Minister’s report against applicant under Citizenship Act, s. 19(2)(a) — Reasonable apprehension of bias as in anterior report on Heritage Front, SIRC made numerous comments on applicant indicating latter effectively considered threat to security of Canada.

After Zündel applied for Canadian citizenship in 1993, the Minister of Citizenship and Immigration made a report to the Security Intelligence Review Committee (SIRC) to the effect that, based on information obtained from the Canadian Security Intelligence Service (CSIS), there were reasonable grounds to believe that Zündel would engage in activity that constitutes a threat to the security of Canada. The applicant was advised that SIRC was being asked to investigate the grounds on which the report was based and make a report to the Governor in Council. If the report were confirmed, the latter could then make a declaration to that effect, thus effectively denying the applicant’s citizenship application.

This was essentially an application pursuant to section 18.1 of the Federal Court Act to prohibit SIRC from proceeding with the investigation and report on the grounds of a reasonable apprehension of bias. The allegation was based on SIRC’s numerous comments on Zündel in a previous report on the Heritage Front Affair entitled the Heritage Front Report dealing with CSIS’ conduct with respect to the CBC, a union at Canada Post, the Reform Party of Canada and white supremacist groups.

Held, the application should be allowed.

Eight affidavits contained in the applicant’s supplementary application record were ordered striken therefrom. Firstly, there was no satisfactory explanation to account for the delay in filing. Secondly, the affidavits addressed an issue that was irrelevant to that before the Court.

Newspaper articles were admitted as exhibits in an affidavit filed on behalf of the applicant but only as evidence of the fact that the Heritage Front Affair had received considerable media attention, and not as evidence of the “facts” contained in them.

These proceedings in no way dealt with the issue of whether there were reasonable grounds to believe that the applicant would engage in activity that constitutes a threat to the security of Canada. The Court was only asked to decide if, in the circumstances of the case, SIRC should be prohibited from carrying out the proceedings mandated by section 19 of the Citizenship Act.

SIRC owed the applicant a duty of fairness. The test was that applicable to administrative boards performing adjudicative functions: “whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator”. In this case, although SIRC was not the ultimate decision-maker as to whether there were reasonable grounds to believe that Zündel would engage in activity that constitutes a threat to the security of Canada, SIRC played a vital and paramount role in that determination. Therefore, the function of SIRC, pursuant to section 19 of the Citizenship Act, came closer to the adjudicative end of the spectrum than to the policy formation or legislative end. The fate of applicant’s Canadian citizenship, and all the privileges and obligations that it encompasses, was at stake.

Applying that test, the views of SIRC, as expressed in the Heritage Front Report, gave rise to a reasonable apprehension of bias against Zündel. Whether those views were correct or not was irrelevant. What was important to this application was the fact that SIRC has made those findings. In the Heritage Front Report, Zündel was described as a member of the “radical right”, a “Holocaust denier”, a “hate literature publisher”. The inescapable inference to be drawn from SIRC’s characterization of Zündel was that he was included in, or akin to, the extreme right wing racist groups and the hate-driven organizations in respect of which SIRC clearly warned Canada as to their great potential for harmful activity. In addition, SIRC has found, in several instances, that the applicant lacked credibility.

In view of the above, an informed person, viewing the matter realistically and practically, and having thought the matter through would conclude that there was a reasonable apprehension of bias on the part of SIRC against Zündel. Indeed, some of SIRC’s statements in the Heritage Front Report demonstrated a prejudgment of issues before SIRC in the impugned proceedings.

SIRC’s counsel argued that if the application were allowed, “SIRC would be rendered powerless to carry out its statutory mandate and CSIS would not be subject to review. The purpose of the establishment of the Committee would be substantially frustrated.” This in terrorem argument was not persuasive. The decision related to the very specific and unusual facts of this case. SIRC would not be rendered powerless to exercise its jurisdiction in other factual situations. However, as a consequence of this decision, the legislative scheme envisaged by the Citizenship Act and the CSIS Act have been thwarted with respect to Zündel’s citizenship application. Perhaps, in such circumstances, the question of an effective remedy can only be addressed through creative legislative action.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

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], ss. 2(b),(d), 24(1),(2).

Canadian Human Rights Act, S.C. 1976-77, c. 33.

Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2(c), 34(1), 38(a),(b),(c)(i),(ii), (iii), 39(2),(3), 42, 43, 44, 48, 49, 50, 51.

Citizenship Act, R.S.C., 1985, c. C-29, ss. 19(1), (2)(a),(b),(3),(4),(5),(6), 20(1),(2),(3),(4),(5).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as enacted by S.C. 1990, c. 8, s. 5).

Federal Court Rules, C.R.C., c. 663, RR. 1611 (as enacted by SOR/92-43, s. 19), 1618 (as enacted idem), 1619 (as enacted idem).

Securities Act, R.S.A. 1970, c. 333, s. 136.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (1994), 17 Admin. L.R. (2d) 2; 164 N.R. 361 (C.A.); Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al. (1994), 77 F.T.R. 218 (F.C.T.D.); Éthier v. Canada (RCMP Commissioner), [1993] 2 F.C. 659 (1993), 151 N.R. 374 (C.A.); Lecoupe v. Canadian Armed Forces (1994), 81 F.T.R. 91 (F.C.T.D.); 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; MacBain v. Lederman, [1985] 1 F.C. 856 (1985), 22 D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R. D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117 (C.A.); Arthur v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 94 (1992), 98 D.L.R. (4th) 254; 18 Imm. L.R. (2d) 22; 147 N.R. 288 (C.A.).

DISTINGUISHED:

Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; (1990), 75 D.L.R. (4th) 385; [1991] 2 W.W.R. 145; 2 M.P.L.R. (2d) 217; 69 Man. R. (2d) 134; 46 Admin. L.R. 161; 116 N.R. 46; Save Richmond Farmland Society v. Richmond (Township), [1993] 3 S.C.R. 1213; (1990), 75 D.L.R. (4th) 425; [1991] 2 W.W.R. 178; 52 B.C.L.R. (2d) 145; 46 Admin. L.R. 264; 2 M.P.L.R. (2d) 288; 116 N.R. 68; Newfoundland Telephone Co. v. Newfoundland (Board of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; (1989), 57 D.L.R. (4th) 458; [1989] 3 W.W.R. 456; 93 N.R. 1.

REFERRED TO:

Bennett v. British Columbia (Securities Commission) (1992), 94 D.L.R. (4th) 339; [1992] 5 W.W.R. 481; 69 B.C.L.R. (2d) 171; 18 B.C.A.C. 191; 31 W.A.C. 191; Zündel v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 359 (T.D.).

APPLICATION for an order prohibiting the Security Intelligence Review Committee from investigating and reporting to the Governor in Council on a report made against the applicant by the Minister of Citizenship and Immigration, under paragraph 19(2)(a) of the Citizenship Act. Application allowed.

COUNSEL:

Douglas H. Christie for applicant.

Donald J. Rennie for respondent Minister.

Gordon K. Cameron for intervenor Security Intelligence Review Committee.

SOLICITORS:

Douglas H. Christie, Victoria, for applicant.

Deputy Attorney General of Canada for respondent Minister.

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

The following are the reasons for order rendered in English by

Heald D.J.: This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act,[1] for the purpose of obtaining:

(a) an Order prohibiting the Security Intelligence Review Committee from investigating and reporting to the Governor in Council on a report made against the Applicant by the Minister of Citizenship and Immigration, under paragraph 19(2)(a) of the Citizenship Act;[2] and

(b) an Order quashing the Security Intelligence Review Committee’s proceedings as a breach of the Applicant’s rights to freedom of expression and freedom of association under subsections 2(b) and (d) of the Canadian Charter of Rights and Freedoms,[3] pursuant to subsection 24(1) of the Charter, or alternately, to exclude such evidence as is in breach of subsections 2(b) and (d), by application of subsection 24(2) of the Charter.

In addition to the application for judicial review, the respondent Minister of Citizenship and Immigration (the Minister) brought a motion, filed May 23, 1996, for an order striking out eight (8) affidavits and two (2) documents contained in the applicant’s supplementary application record, filed May 9, 1996. I advised counsel at the hearing that I would reserve determination of this motion and include it in these reasons.

I.          BACKGROUND

The events giving rise to the Security Intelligence Review Committee’s (SIRC) proceedings supra, will be discussed later in these reasons. However, initially, I think it instructive to describe the legislative scheme under which the proceedings a quo have arisen.

i.          Legislative Scheme

Section 19 of the Citizenship Act outlines the procedure to be followed when the Minister is of the opinion that there are reasonable grounds to believe that an applicant for citizenship will engage in activity that constitutes a threat to the security of Canada. This procedure may result in a declaration by the Governor in Council, pursuant to section 20 of the Citizenship Act, that there are reasonable grounds to believe that the applicant will engage in such activity. Sections 19 and 20 of the Citizenship Act read as follows:

19. (1) In this section and section 20, “Review Committee” and “threats to the security of Canada” have the meanings assigned to those expressions by the Canadian Security Intelligence Service Act .

(2) Where the Minister is of the opinion that a person should not be granted citizenship under section 5 or subsection 11(1) or administered the oath of citizenship or be issued a certificate of renunciation under section 9 because there are reasonable grounds to believe that the person will engage in activity

(a) that constitutes a threat to the security of Canada, or

(b) that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment,

the Minister may make a report to the Review Committee.

(3) The Minister shall, within ten days after a report is made pursuant to subsection (2), cause a notice to be sent informing the person referred to in that subsection of the report and stating that following an investigation in relation thereto, a declaration with respect to that person may be made by the Governor in Council under section 20.

(4) Where a report is made to the Review Committee pursuant to subsection (2), the Review Committee shall investigate the grounds on which it is based and for that purpose subsections 39(2) and (3) and sections 43, 44 and 48 to 51 of the Canadian Security Intelligence Service Act apply, with such modifications as the circumstances require, to the investigation as if the investigation were conducted in relation to a complaint made pursuant to section 42 of that Act, except that a reference in any of those provisions to “deputy head” shall be read as a reference to the Minister.

(5) The Review Committee shall, as soon as practicable after a report is made to it pursuant to subsection (2), send to the person with respect to whom the report is made a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report.

(6) The Review Committee shall, on completion of an investigation made pursuant to subsection (4), make a report to the Governor in Council on all matters relating thereto and shall, at the same time as or after the report is made, provide the complainant with the conclusions of the report.

20. (1) Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or administered the oath of citizenship or be issued a certificate of renunciation under section 9 where, after considering the report made by the Review Committee pursuant to subsection 19(6), the Governor in Council declares that there are reasonable grounds to believe that the person with respect to whom the report was made will engage in an activity described in paragraph 19(2)(a) or (b).

(2) Where a person is the subject of a declaration made under subsection (1), any application that has been made by that person under section 5 or 9 or subsection 11(1) is deemed to be not approved and any appeal made by him under subsection 14(5) is deemed to be dismissed.

(3) A declaration made under subsection (1) ceases to have effect two years after the day on which it was made.

(4) Notwithstanding that a declaration has been previously made under subsection 20(1) with respect to a person, the Governor in Council may, after considering any further application made by that person, make a further declaration under that subsection with respect to that person.

(5) Notwithstanding anything in this Act or any other Act of Parliament, a declaration by the Governor in Council under subsection (1) is conclusive of the matters stated therein in relation to an application for citizenship or for the issue of a certificate of renunciation.

To summarize the above procedure, if the Minister is of the opinion that there are reasonable grounds to believe that an applicant for citizenship (the applicant) will engage in activity that constitutes a threat to the security of Canada, then the Minister may make a report to this effect to SIRC, pursuant to subsection 19(2) of the Citizenship Act. Within ten (10) days of making the said report, the Minister shall notify the applicant of the report. The Minister is also required to advise the applicant that following an investigation by SIRC, a declaration by the Governor in Council pursuant to section 20 of the Citizenship Act may follow.

SIRC is then required to conduct an investigation, pursuant to subsection 19(4) of the Citizenship Act, in accordance with several enumerated provisions of the Canadian Security Intelligence Service Act[4] (the CSIS Act). As soon as practicable, SIRC shall send the applicant a statement of circumstances that sets out the circumstances that gave rise to the Minister’s report. Following its investigation, SIRC shall make a report to the Governor in Council and provide the applicant with the conclusions of the report, pursuant to subsection 19(6) of the Citizenship Act.

After considering SIRC’s report, the Governor in Council may declare, pursuant to subsection 20(1) of the Citizenship Act, that there are reasonable grounds to believe that the applicant will engage in activity that constitutes a threat to the security of Canada. The effect of such a declaration is to preclude the applicant from being granted Canadian citizenship. I would observe that, pursuant to subsections 20(2) and 20(5) supra, a declaration by the Governor in Council is absolutely determinative of the citizenship application. The applicant must then wait for a two-year period to expire, following which the declaration ceases to have effect, and he/she may then submit another application for citizenship. Accordingly, SIRC’s counsel conceded at the hearing that this application for judicial review, wherein Zündel seeks an order of prohibition, is the only avenue open to Zündel to challenge the proceedings arising under section 19 of the Citizenship Act.[5]

I shall now set out the legislative framework within which SIRC must conduct the proceedings mandated by section 19 of the Citizenship Act. SIRC is created by subsection 34(1) of the CSIS Act, which reads as follows:

34. (1) There is hereby established a committee, to be known as the Security Intelligence Review Committee, consisting of a Chairman and not less than two and not more than four other members, all of whom shall be appointed by the Governor in Council from among members of the Queen’s Privy Council for Canada who are not members of the Senate or the House of Commons, after consultation by the Prime Minister of Canada with the Leader of the Opposition in the House of Commons and the leader in the House of Commons of each party having at least twelve members in that House.

SIRC was established as an agency with roles as both a review agency and an investigative agency: its functions are detailed in section 38 of the CSIS Act. Paragraphs 38(a) and (b) set out its functions as a review agency and paragraph 38(c) describes its functions as an investigative agency. Section 38 reads as follows:

38. The functions of the Review Committee [SIRC] are

(a) to review generally the performance by the Service [CSIS] of its duties and functions and, in connection therewith,

(i) to review the reports of the Director and certificates of the Inspector General transmitted to it pursuant to subsection 33(3),

(ii) to review directions issued by the Minister under subsection 6(2),

(iii) to review arrangements entered into by the Service pursuant to subsections 13(2) and (3) and 17(1) and to monitor the provision of information and intelligence pursuant to those arrangements,

(iv) to review any report or comment given to it pursuant to subsection 20(4),

(v) to monitor any request referred to in paragraph 16(3)(a) made to the Service,

(vi) to review the regulations, and

(vii) to compile and analyse statistics on the operational activities of the Service;

(b) to arrange for reviews to be conducted, or to conduct reviews, pursuant to section 40; and

(c) to conduct investigations in relation to

(i) complaints made to the Committee under sections 41 and 42,

(ii) reports made to the Committee pursuant to section 19 of the Citizenship Act or sections 39 and 81 of the Immigration Act, and

(iii) matters referred to the Committee pursuant to section 45 of the Canadian Human Rights Act.

Subsection 19(4) of the Citizenship Act requires that an investigation conducted pursuant to that section proceed as if it were in relation to a complaint made pursuant to section 42 of the CSIS Act. As subparagraph 38(c)(i) governs investigations made under section 42, it follows that the investigation mandated by subsection 19(4) of the Citizenship Act also falls under this provision.

It is clearly set out in subsection 19(4) of the Citizenship Act that the specific provisions of the CSIS Act that apply to this investigation are subsections 39(2) and (3), and sections 43, 44 and 48 through 51. As these sections of the CSIS Act set out the framework for SIRC’s investigation, I shall reproduce them below.

39. …

(2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (3), the Review Committee is entitled

(a) to have access to any information under the control of the Service or of the Inspector General that relates to the performance of the duties and functions of the Committee and to receive from the Inspector General, Director and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions; and

(b) during any investigation referred to in paragraph 38(c), to have access to any information under the control of the deputy head concerned that is relevant to the investigation.

(3) No information described in subsection (2), other than a confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies, may be withheld from the Committee on any grounds.

…

43. A member of the Review Committee may exercise any of the powers or perform any of the duties or functions of the Committee under this Part in relation to complaints.

44. Nothing in this Act precludes the Review Committee from receiving and investigating complaints described in sections 41 and 42 that are submitted by a person authorized by the complainant to act on behalf of the complainant, and a reference to a complainant in any other section includes a reference to a person so authorized.

…

48. (1) Every investigation of a complaint under this Part by the Review Committee shall be conducted in private.

(2) In the course of an investigation of a complaint under this Part by the Review Committee, the complainant, deputy head concerned and the Director shall be given an opportunity to make representations to the Review Committee, to present evidence and to be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person.

49. In the course of an investigation of a complaint under this Part, the Review Committee shall, where appropriate, ask the Canadian Human Rights Commission for its opinion or comments with respect to the complaint.

50. The Review Committee has, in relation to the investigation of any complaint under this Part, power

(a) to summon and enforce the appearance of persons before the Committee and to compel them to give oral or written evidence on oath and to produce such documents and things as the Committee deems requisite to the full investigation and consideration of the complaint in the same manner and to the same extent as a superior court of record;

(b) to administer oaths; and

(c) to receive and accept such evidence and other information, whether on oath or by affidavit or otherwise, as the Committee sees fit, whether or not that evidence or information is or would be admissible in a court of law.

51. Except in a prosecution of a person for an offence under section 133 of the Criminal Code (false statements in extra-judicial proceedings) in respect of a statement made under this Act, evidence given by a person in proceedings under this Part and evidence of the existence of the proceedings are inadmissible against that person in a court or in any other proceedings.

Pursuant to subsection 48(2) supra, in the course of its investigation, Zündel, Canadian Security Intelligence service (CSIS) and the Minister must be allowed to present evidence and make representations, either personally or by counsel, to SIRC. According to SIRC’s counsel, these representations are usually received by holding a hearing.[6] In the case at bar, Zündel seeks to have this hearing and SIRC’s resultant report to the Governor in Council prohibited (the impugned proceedings).

ii.         Zündel’s Citizenship Application

Zündel was born on April 24, 1939, in Calmbach, Germany. He entered Canada as a permanent resident on September 2, 1958. On October 24, 1993, Zündel applied for Canadian citizenship.[7] By letter dated August 5, 1995, he was notified by the Minister that the Minister had made a report (the Minister’s report) to SIRC, pursuant to subsection 19(2) of the Citizenship Act, to the effect that there were reasonable grounds to believe that Zündel would engage in activity that constitutes a threat to the security of Canada.[8] The Minister further informed Zündel that this determination had been made on the basis of information and advice provided by CSIS. Zündel was advised that the Registrar of Canadian citizenship would suspend processing Zündel’s application for Canadian citizenship until SIRC had completed the review required under section 19 of the Citizenship Act.

By a letter dated August 31, 1995, the Executive Director of SIRC, Maurice Archdeacon (the Executive Director), informed Zündel that SIRC had received the Minister’s report concerning his application for citizenship. He further advised Zündel that, in accordance with subsection 19(5) of the Citizenship Act, SIRC would send Zündel a statement summarizing the information available to it in order to permit him to be as fully informed as possible of the circumstances giving rise to the Minister’s report.[9]

Accordingly, Zündel was sent a letter dated October 30, 1995, by SIRC, wherein he was advised that an investigation would be conducted. Also enclosed was the statement of circumstances that gave rise to the Minister’s report.[10] Zündel was also informed that the particular activities which CSIS believed that he would engage in were those described in paragraph 2(c) of the CSIS Act, which reads as follows:

2. …

“threats to the security of Canada” means

…

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state, and

…

but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).

The letter also advised Zündel that SIRC would provide further information as the investigation progressed.

On November 22, 1995, counsel for SIRC and others met with Zündel and his then counsel John May, to explain the investigative process and answer questions.[11] By letter dated December 11, 1995, the Executive Director wrote May to confirm that SIRC was ready to proceed with the hearing part of the investigation, and scheduled the matter to be heard in January of 1996, due to Zündel’s unavailability in December of 1995.[12]

Zündel’s counsel subsequently obtained an adjournment of the hearing to February 19, 1996.[13] Following this, by letter dated January 25, 1996, the Executive Director advised Zündel, through his counsel, that the hearing was rescheduled to March 19, 1996.[14] Then, by letter dated February 26, 1996, Douglas Christie, Zündel’s current counsel, requested another adjournment of the hearing so he could file an application for judicial review, on the grounds of a reasonable apprehension of bias on the part of SIRC.[15] The basis of Zündel’s allegation of bias is a report written by SIRC entitled The Heritage Front Affair (the Heritage Front Report). By a letter dated February 28, 1996, the Executive Director refused to grant this adjournment.[16]

Subsequently, on March 21, 1996, Zündel brought a motion before Madam Justice McGillis [[1996] F.C.J. No. 359 (T.D.)] seeking an order for a stay of proceedings concerning the SIRC hearing scheduled for March 25, 1996, and an order for an expedited hearing of Zündel’s application for judicial review seeking prohibition and relief under the Charter. By an order dated March 21, 1996, Madam Justice McGillis granted Zündel’s motion for an expedited hearing of the matter. However, Her Ladyship refused to grant a stay of SIRC’s proceedings. Accordingly, the within application for judicial review was heard by me on June 10 and 11, 1996, on an expedited basis.

iii.        The Heritage Front Report

Beginning in August of 1994, allegations that CSIS and one of its sources had improperly participated in or investigated the affairs of individuals and domestic organizations, including the CBC, a union at Canada Post, the Reform Party of Canada and “white supremacist” groups, surfaced in the press and Parliament.[17] Consequently, in the same month, SIRC initiated a review of the conduct of CSIS, pursuant to paragraph 38(b) supra, relating to the events, which are now commonly referred to as the “Heritage Front Affair”. SIRC’s resulting Heritage Front Report was issued in December of 1994, and transmitted to the Solicitor General for Canada.

The statement of circumstances given to Zündel pursuant to subsection 19(5) of the Citizenship Act included an index listing 52 documents and 11 videotapes and cassettes, which were relied on by CSIS to establish its allegations against Zündel. Included in that list of documents was the Heritage Front Report. Zündel’s allegation that there is a reasonable apprehension of bias within SIRC, with respect to the impugned proceedings, is based on the Heritage Front Report.

II.         ISSUES

A.        Status of SIRC

1.         Should SIRC be granted intervenor status?

B.        Notice of Motion, filed May 23, 1996, by the Minister

1.         Should the Court grant an order striking out the eight (8) affidavits and two (2) documents contained in Zündel’s supplementary application record?

C.        Application for Judicial Review, filed March 7, 1996, by Zündel

1.         Is the affidavit of Barbara Kulaszka, filed on behalf of Zündel, inadmissible in part?

2.         Should the Court grant an order prohibiting SIRC from investigating and reporting to the Governor in Council on the Minister’s report?

3.         Should the Court grant an order quashing SIRC’s proceedings as a breach of Zündel’s rights as protected by paragraphs 2(b) and (d) of the Charter or alternately, exclude such evidence as is in breach of these rights?

III.        ANALYSIS

A.        Status of SIRC

1.         Should SIRC be granted intervenor status?

In the originating notice of motion that commenced this application for judicial review, SIRC was named as a respondent. At the hearing of this matter, SIRC’s counsel drew the Court’s attention to the Federal Court of Appeal decision in Canada (Human Rights Commission) v. Canada (Attorney General),[18] wherein the Court held that the federal board under review, in an application brought under section 18.1 of the Federal Court Act, cannot be named as a respondent. Justice Décary, J.A., held that a federal board that has been erroneously named as a respondent will have no status as a respondent and will not be allowed to participate in the proceedings unless it obtains leave, under Rule 1611 of the Federal Court Rules,[19] to participate as an intervenor.[20]

At the hearing of this matter, SIRC’s counsel proposed that the style of cause be amended to name SIRC as an intervenor rather than a respondent. Thus, SIRC sought leave to intervene in these proceedings, in which it had been erroneously named as a respondent. However, SIRC did not comply with the provisions of Rule 1611, which require the party seeking leave to intervene to file a notice of application for leave to intervene and to serve a copy of it on all the parties. Pursuant to Rule 1619 [as enacted idem] of the Federal Court Rules I may waive compliance with all or part of Rule 1611.[21] Accordingly, I am of the view this is an appropriate case to grant SIRC intervenor status, pursuant to subsection 1611(3) of the Rules, and I am waiving compliance with the requirements of Rule 1611. Therefore, the style of cause is amended to strike out SIRC as a respondent and to add SIRC as an intervenor.

B.        Notice of Motion, filed May 23, 1996, by the Minister

1.         Should the Court grant an order striking out the eight (8) affidavits and two (2) documents contained in Zündel’s supplementary application record?

The order dated March 21, 1996, of Justice McGillis, wherein she granted Zündel’s motion for an expedited hearing in this matter, set out the following timetable:

1. The respondents shall serve and file their affidavits on or before April 11, 1996;

2. Cross-examinations, if any, on affidavits shall be completed by the parties on or before April 26, 1996;

3. The application records of the respondents shall be served and filed on or before May 3, 1996;

4. The applicant shall serve and file a supplementary application record, if any, on or before May 10, 1996.

On May 9, 1996, Zündel filed a supplementary application record containing eight (8) affidavits, two (2) documents and a supplementary memorandum of argument. On May 23, 1996, the Minister filed a notice of motion seeking an order striking out the affidavits and documents contained in the supplementary application record. The Minister did not object to the filing of the supplementary memorandum of argument. The affidavits and documents in issue are the following:

A.        Affidavit of Wolfgang Droege, sworn April, 1996;

B.        Affidavit of Donna Elliott, sworn March 22, 1996;

C.        Affidavit of Wayne Elliott, sworn March 22, 1996;

D.        Affidavit of Eric Fischer, sworn March 24, 1996;

E.        Affidavit of Max French, sworn March 24, 1996;

F.         Affidavit of Gerry Lincoln, sworn March 24, 1996;

G.        Affidavit of Tyrone Mason, sworn May 9, 1996;

H.        Affidavit of Ernst Zündel, sworn May 9, 1996;

I.          Transcripts of testimony of Elisse Hategan, before House of Commons Sub-Committee on National Security, on June 13, 1995; and

J.         Statement of the Crown dismissing charges against Zündel.

With respect to the eight (8) affidavits contained in the supplementary application record, as they were filed subsequent to the date by which cross-examinations were ordered to be completed, they are not in compliance with the timetable. As for the remaining documents, namely documents I and J supra, as they were filed as part of the supplementary application record prior to the May 10, 1996, deadline set by Justice McGillis, I am satisfied they are in compliance with the said timetable.

In support of the Minister’s objection to the filing of the affidavits, the Minister’s counsel relied on the decision of Justice MacKay of this Court, in Canadian Parks and Wilderness Society v. Banff National Park (Superintendent) et al.[22] Justice MacKay dealt with a motion of an applicant in a judicial review application for leave to file an affidavit late. His Lordship set out the criteria to be applied in making such determinations as follows:

[I]n my view the criteria there relied upon are applicable in this case, where leave is sought to file materials later than the date fixed by court order. Those requirements are that the court consider the reasons for the delay and the intrinsic worth of the affidavit, i.e. its relevance, admissibility and potential use to the court.[23]

Accordingly, the Court must consider the reasons for the delay and the intrinsic worth of the affidavits. With respect to the reason for delay, at least five of the affidavits (documents B, C, D, E and F) and perhaps one other (document A) were sworn well in advance of the April 26, 1996, deadline set by Justice McGillis for conducting cross-examination on affidavits. However, the affidavits were not filed by Zündel until May 9, 1996. Zündel did not provide a reason for the delay. The remaining two affidavits (documents G and H) were sworn on May 9, 1996, the same day they were filed. However, again Zündel has not explained the reason for this delay.

With respect to the intrinsic worth of the affidavits, which involves a consideration of their relevance, it is the Minister’s submission that the evidence sought to be adduced is of no relevance to the issue of bias before the Court in this application.

The affidavits of Droege, D. Elliott, W. Elliott, Fischer, French, Lincoln and Mason (documents A-G) contain passages from the Heritage Front Report, which are followed by the affiant’s statements concerning the accuracy or inaccuracy of the said passages. It seems clear that the purpose of this evidence is to attack the validity of the findings and statements of SIRC contained in the Heritage Front Report. Accordingly, I agree with the Minister that this evidence is irrelevant to the issues raised in this application for judicial review. The question to be determined herein is not whether the Heritage Front Report contains valid findings that are premised on fact. Rather, in these proceedings, what we are concerned with is whether or not statements previously made by SIRC give rise to a reasonable apprehension of bias with respect to the impugned proceedings. However, the question of whether the said statements are unfounded does not have to be addressed.

Document H is an affidavit sworn by Zündel. Although much of the information contained therein may be relevant to the impugned proceedings before SIRC, it is irrelevant with respect to the application presently before this Court. In this application, the Court will not be making any findings with respect to the substantive issues that are before SIRC. The issue in this application is to determine whether SIRC has fulfilled its duty of fairness in the impugned proceedings before it. Accordingly, any evidence sought to be introduced that addresses the merits of the issues before SIRC is irrelevant to this application.

Additionally, paragraphs 7, 10 and 14 of document H possess another infirmity, in that they violate the rule precluding the admission of hearsay evidence, nor do they satisfy the criteria of necessity and reliability to qualify as an exception to that rule.[24]

For the aforesaid reasons, I am of the view that the eight (8) affidavits, documents A-H supra, do not meet the criteria for late admissibility set out in Canadian Parks, supra. Firstly, no satisfactory explanation was provided to account for the delay in filing. Secondly, these affidavits address an issue that is irrelevant to the issue before the Court in this application for judicial review. Accordingly, I will make an order striking out from the supplementary application record the eight (8) affidavits found at tabs A through H.[25]

With respect to documents I and J supra, since they do not violate the timetable set out by Justice McGillis, I will permit them to be filed as part of Zündel’s supplementary application record.[26] The supplementary memorandum of argument was not objected to by the Minister, and accordingly it will be admitted (tab K of the supplementary application record).

C.        Application for Judicial Review, filed March 7, 1996, by Zündel

1.         Is the affidavit of Barbara Kulaszka, filed on behalf of Zündel, inadmissible in part?

A preliminary issue to be addressed is the admissibility of the affidavit of Barbara Kulaszka (the Kulaszka affidavit), sworn March 4, 1996, filed on behalf of Zündel. The Minister has challenged the admissibility of numerous newspaper articles appended as exhibits to the Kulaszka affidavit as well as paragraph 18 thereof, on the basis that those portions of the affidavit contravene the rule against hearsay evidence.

The Kulaszka affidavit includes in Exhibits B, C and G over 30 newspaper articles relating to the Heritage Front Affair. I agree with the Minister’s counsel that these articles are not admissible for the truth of their contents. However, I also agree with Zündel’s counsel that they are admissible to the extent that they illustrate the media attention that was attracted by the Heritage Front Affair. I will therefore permit these exhibits to the Kulaszka affidavit to be admitted only as evidence of the fact that the Heritage Front Affair was given considerable media attention. However, they are not evidence of the “facts” contained therein.

The Minister also submitted that paragraph 18 of the Kulaszka affidavit was inadmissible hearsay.[27] I have reviewed the paragraph, taking into consideration the jurisprudence concerning the hearsay rule that has developed in the Federal Court decisions in Éthier[28] and Lecoupe.[29] In my view this paragraph is inadmissible as it is hearsay and does not fall within the exceptions to the hearsay rule set out in the jurisprudence referred to above.

Accordingly, I conclude that the Kulaszka affidavit is admissible in its entirety, with the exception of paragraph 18. With respect to the newspaper articles contained in Exhibits B, C and G of the Kulaszka affidavit, they are admissible only in so far as they establish the media attention given the Heritage Front Affair: they are not evidence of the truth of their contents.

2.         Should the Court grant an order prohibiting SIRC from investigating and reporting to the Governor in Council on the Minister’s report?

I would like to make it clear at the outset what the Court is being asked to decide. This application seeks an order to prohibit proceedings of a federal board, namely SIRC, pursuant to section 18.1 of the Federal Court Act. In this case, it is alleged that there is a reasonable apprehension of bias on the part of the federal board, SIRC, thereby breaching the duty of fairness toward Zündel, and on that basis, the SIRC proceedings should be prohibited. In deciding the prohibition issue, the Court is without jurisdiction to reach a conclusion with respect to the issues before SIRC in the impugned proceedings. Accordingly, the Court’s reasons herein draw no conclusion with respect to the central issue in the SIRC proceedings, namely whether there are reasonable grounds to believe that Zündel will engage in activity that constitutes a threat to the security of Canada.

The issue before the Court in this application is a narrow one restricted to the facts of this case. The Court is only being asked to decide if, in the circumstances of this case, SIRC should be prohibited from carrying out the proceedings mandated by section 19 of the Citizenship Act.

i.          The applicable test for bias

The first issue is to determine what test for bias is applicable to the case at bar. It is well established law that administrative boards owe a duty of fairness to those whose interest they must determine. However, the courts have also recognized that the duty of fairness varies depending on the nature and function of the particular board.[30] The Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Public Utilities)[31] recognized that the impartiality required of a board, as an element of the duty of fairness, also varies with the nature and function of the board. On one end of the spectrum are those boards with a primarily adjudicative function, while on the other end of the spectrum are those boards that perform a policy formation function. Justice Cory articulated the varying tests for bias that apply at the opposite ends of the spectrum:

It can be seen that there is a great diversity of administrative boards. Those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts. That is to say that the conduct of the members of the board should be such that there could be no reasonable apprehension of bias with regard to their decision. At the other end of the scale are boards with popularly elected members such as those dealing with planning and development whose members are municipal councillors. With those boards, the standard will be much more lenient. In order to disqualify the members a challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representations to the contrary would be futile. Administrative boards that deal with matters of policy will be closely comparable to the boards composed of municipal councillors. For those boards, a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature.

…

Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. This does not of course mean that there are no limits to the conduct of board members. It is simply a confirmation of the principle that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered.[32]

Thus, at the adjudicative end of the spectrum the administrative board should conduct itself such that there could be no reasonable apprehension of bias with regard to their decision. The test is “whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.”[33] For ease of reference I shall refer to this as the “informed bystander” test.[34]

At the policy formation end of the spectrum, the test for bias is the more lenient standard that Justice Sopinka adopted in Old St. Boniface Residents Assn. Inc. v. Winnipeg (City),[35] which has been described as the “open mind” test. In order to demonstrate bias under the open mind test, it must be established that the board has prejudged the matter to the extent that any representations at variance with the view, which has been adopted, would be futile.[36]

Accordingly, the Court must decide which end of the spectrum most closely characterizes the function of SIRC in relation to the proceedings it is mandated to undertake pursuant to section 19 of the Citizenship Act. Not surprisingly, the Minister’s counsel and Zündel’s counsel made diametrically opposite submissions in this regard. Counsel for the Minister submitted that the question before SIRC, with respect to the impugned proceedings, was a question of policy, and as such SIRC’s function fell closer to the policy formation end of the spectrum.[37] Zündel’s counsel submitted that the role of SIRC, in this case, was adjudicative, and thus attracted the higher standard of impartiality mandated by the informed bystander test.[38]

In coming to a determination as to where on the spectrum SIRC’s function falls, it is instructive to examine the nature of the proceedings in issue. SIRC’s mandate under section 19 of the Citizenship Act, in the words of the Executive Director, is to conduct an investigation to determine whether there are reasonable grounds to believe that Zündel will engage in activity that constitutes a threat to the security of Canada.[39] In accordance with the CSIS Act, the investigation is to be conducted in private. However, Zündel, CSIS and the Minister will be given an opportunity to make representations, submit evidence and be heard personally or by counsel, at a hearing.[40]

On completion of the investigation, SIRC will make a report to the Governor in Council on all matters relating thereto and shall provide Zündel with the conclusions of the report. It is the Governor in Council who will, upon consideration of SIRC’s report, decide whether or not to declare that there are reasonable grounds to believe that Zündel will engage in activity that constitutes a threat to the security of Canada. If such a declaration does issue, it will be determinative of Zündel’s application for citizenship.

It is not disputed that it is the Governor in Council, and not SIRC, that ultimately makes the decision as to whether or not there are reasonable grounds to believe that Zündel will engage in activity that constitutes a threat to the security of Canada. However, the role of SIRC should not be understated. It is SIRC that conducts a hearing at which it assesses the witnesses and weighs their evidence. It is before SIRC that the interested parties make their submissions. Finally, it is SIRC that synthesizes all of this information into a report. As subsection 19(6) of the Citizenship Act requires SIRC to provide Zündel with the “conclusions of the report”, it is apparent that SIRC’s report also necessarily includes SIRC’s conclusions reached in the impugned proceedings. Furthermore, this is the only report that the Governor in Council is statutorily required to take into consideration before deciding whether or not to make a declaration, pursuant to subsection 20(1) of the Citizenship Act . Since there is no provision in the legislative scheme for Zündel to make representations directly to the Governor in Council, the hearing before SIRC is Zündel’s only opportunity to challenge the allegations against him.

To summarize, although SIRC is not the ultimate decision-maker as to whether there are reasonable grounds to believe that Zündel will engage in activity that constitutes a threat to the security of Canada, SIRC plays a vital and paramount role in that determination.

The Minister’s counsel admitted that SIRC has an “adjudicative function in respect of an important issue, namely the right of an individual to remain in Canada to become a citizen of this country.”[41] However, he further submitted that since that determination is made in the “broader context of whether or not the conduct of the individual constitutes a threat to the security of Canada” it is clearly a question of policy. Thus, in the Minister’s submission, the function of SIRC falls closer to the policy formation end of the spectrum.[42]

The Supreme Court of Canada in Old St. Boniface, supra, and Save Richmond Farmland Society v. Richmond (Township),[43] which were heard together, applied the open mind test for bias. In both of those cases, the issue was whether a municipal councillor (alderman) was disqualified by reason of bias. The Court held that the functions being performed by the municipal councillors were of the policy formation nature, and accordingly the more lenient open mind test was applicable.

In Old St. Boniface, bias was alleged with respect to a municipal councillor in his capacity as Chairman of a committee. The function of the committee was to hear representations from interested persons with respect to rezoning applications, and then make a recommendation on the application. Similarly, in Save Richmond Farmland, the issue was whether a municipal alderman was disqualified by bias from participating in a decision with respect to a zoning by-law. It is these functions that the Court, correctly in my view, characterized as falling on the policy formation end of the spectrum.

In a subsequent case before the Supreme Court of Canada, Nfld. Telephone, supra, the Court characterized the functions of a public utilities board as coming closer to the policy formation or legislative end of the spectrum.[44]

In my view, the function of SIRC, pursuant to section 19 of the Citizenship Act, comes closer to the adjudicative end of the spectrum. This is not a case where there is an elected board that functions to make legislative decisions that are binding on the public at large, as in Old St. Boniface and Save Richmond Farmland. Nor is it a case of an appointed board performing a watchdog role over a public utility, as in Nfld. Telephone. Rather, the issue before SIRC is whether, in respect of a specific individual who has applied for citizenship, namely Mr. Ernst Zündel, there are reasonable grounds to believe that he will engage in activity that constitutes a threat to the security of Canada. If the ultimate outcome of the SIRC proceedings is a declaration by the Governor in Council to this effect, then Zündel cannot be granted citizenship, until the said declaration expires. The fate of Zündel’s Canadian citizenship, and all the privileges and obligations that it encompasses, is at stake.

Accordingly, in my view, the function of SIRC, in the proceedings mandated by section 19 of the Citizenship Act, attracts the standard of impartiality required by the informed bystander test.

ii.         Application of the informed bystander test for bias

It is Zündel’s submission that the views of SIRC espoused in the Heritage Front Report give rise to a reasonable apprehension of bias of SIRC against him. The Heritage Front Report makes reference to Zündel in at least twenty (20) different passages.[45] The content of these references will be discussed in detail later in these reasons. Although the Minister does rely on the Heritage Front Report to support the allegations against Zündel, it makes no difference, in my view, whether the Heritage Front Report is tendered as evidence at the SIRC hearing. The fact remains that SIRC authored the report and made the statements contained therein.

As noted supra, Zündel sought to adduce evidence that attacked the validity of the findings in the Heritage Front Report, in support of this application. I have already concluded that this evidence is inadmissible since it is irrelevant to the issue before the Court in this application. The Court, in this application, does not have to decide whether SIRC’s findings in the Heritage Front Report are valid. What is important to this application is the fact that SIRC has made those findings. The question to be determined here is whether, because of SIRC’s statements in the Heritage Front Report, there is a reasonable apprehension of bias against Zündel with respect to the proceedings now before SIRC, pursuant to section 19 of the Citizenship Act.

I shall now set out the allegations against Zündel that are contained in the statement of circumstances, supra, which SIRC provided to him. Pursuant to subsection 19(5) of the Citizenship Act, the purpose of providing the citizenship applicant with the statement of circumstances is to enable the person to be as fully informed as possible of the circumstances that gave rise to the Minister’s report. The statement of circumstances provided to Zündel is a 2½ page document. Rather than reproduce it in its entirety, I have excerpted the following passages, which include the various allegations made against Zündel.

1. The Canadian Security Intelligence Service has asserted that that [sic] there are reasonable grounds to believe that Ernst Christof Friedrich Zündel will engage in activity that constitutes a threat to the security of Canada in that:

a) Mr. Zündel plays an important leadership role within the white supremacist movement in Canada. He is considered the patriarch of the neo-Nazi white supremacist movement and is often approached for advice and ideological support by other white supremacists.

b) Mr. Zündel espouses radical right-wing causes and is a leading distributor of revisionist neo-Nazi propaganda world-wide.

c) Mr. Zündel maintains white supremacist contacts internationally and channels money through these contacts to promote his cause.

d) Mr. Zündel has supported the use of violence against persons or property as a method to achieve his political goal.

e) Mr. Zündel has been associated with and has supported groups and individuals that have engaged in and may engage in acts of serious violence in the furtherance of common political objectives.

…

According to the Service, Mr. Zündel’s activities were assessed in the context of the hostile white supremacist environment in which he promotes his revisionist ideology. In that context, Mr. Zündel operates a publishing company, “Samisdat Publishing Organization” which is one of the world’s major sources of Holocaust denial material including German language publications which feed the fires of hatred in Central Europe. Mr. Zündel is known internationally for publishing militant revisionist material proclaiming that the Holocaust is a hoax .… Mr. Zündel also broadcasts anti-semitic propaganda via short-wave radio to North America and Europe and a neo-Nazi revisionist program via satellite television.

…

The Service believes that Mr. Zündel continues to utilize Canada as his “secure base of operations” for promoting the white supremacist movement in Germany and other countries. He maintains contacts in many of these countries and channels money through them to support white supremacist activities and assist those who promote them.

…

As a consequence of Mr. Zündel’s participation, involvement and support of the neo-Nazi/white supremacist movement in Canada to achieve a political objective, in Canada and elsewhere, the Service advised the Minister that that [sic] there were reasonable grounds to believe that Mr. Zündel is in a position to direct his followers to commit acts of serious violence, and therefore will continue to engage in activities that constitute a threat to the security of Canada as defined in subsection 2(c) of the CSIS Act.[46]

Accordingly, it seems clear that the circumstances supra, lead the Minister to report that he had reasonable grounds to believe that Zündel would engage in activities that constitute a threat to the security of Canada. It follows that Zündel will seek to refute the allegations therein, in order to persuade SIRC that there are in fact no reasonable grounds to believe that he will engage in such activity.

As noted supra, the Heritage Front Report contains numerous references to Zündel. In my view, the strongest statements made in regard to Zündel are contained in the following passages:

The individuals and groups defended by this organization are generally from the radical right and include such Holocaust deniers as Ernst Zündel, Jim Keegstra and Malcolm Ross ….

Like a “floating crap game”, people gravitated from hate literature publisher Ernst Zündel to high school teacher Paul Fromm to Don Andrews and back over time.

…

Of greater significance that month, Wolfgang Droege and Ernst Zündel, the Holocaust Denier and prolific publisher of hate literature, appeared together publicly at a Heritage Front meeting ….

According to the Toronto Region Investigator, Holocaust denier Ernst Zündel sometimes asked for information to be collected and, after approval by Droege, the Source would appear to carry out the request ….

That month, Wolfgang Droege and Ernst Zündel, Holocaust denier and prolific publisher of hate literature, met publicly at a Heritage Front meeting ….

As we have stated in our report, the members of racist groups, for example, go from one organization to another for a variety of reasons and the groups form and re-form under different names. Today’s Heritage Front member is tomorrow’s Nationalist Party of Canada member or a follower of Ernst Zündel or, more likely in view of recent court cases in North America, an aggressive racist who claims that he belongs to no particular group in order to avoid prosecution ….

Finally, we would like to put on the record our unshakeable conviction that the Government of Canada, through all means at its disposal, should continue to ensure that it is always aware of what is going on within extreme right wing racist and Neo-Nazi groups. Canadians should never again repeat the mistakes of the past by underestimating the potential for harm embodied in hate-driven organizations.[47] [Emphasis added.]

In the above passages, SIRC has labelled Zündel as a Holocaust denier, hate literature publisher and member of the radical right. SIRC also put Zündel in a category with members of the Heritage Front, Nationalist Party of Canada and aggressive racists. In essence, SIRC characterized Zündel as a radical right wing racist. SIRC then proceeded to put on the record its unshakeable conviction that the Government should continue to ensure that it is always aware of what is going on within extreme right wing racist groups, as Canada should never underestimate the potential for harm embodied in hate-driven organizations.

In my view, the inescapable inference to be drawn from SIRC’s characterization of Zündel is that he is included in, or akin to, the extreme right wing racist groups and the hate-driven organizations. In respect of those organizations SIRC clearly warned Canada of their great potential for harmful activity.

In addition to the passages from the Heritage Front Report supra, there are several instances throughout the report where SIRC recounts activities of and statements said to have been made by Zündel, including only in footnote form Zündel’s denial of the said activities and statements.[48] With respect to these instances, it is apparent that SIRC has accepted information received from others over that provided by Zündel. Thus, SIRC has had an opportunity to assess the credibility of Zündel and has found him, in several instances, to lack credibility.

The question remains as to whether the above statements and findings of SIRC establish a reasonable apprehension of bias in accordance with the informed bystander test. The statement of circumstances makes a number of allegations from which it is alleged there are reasonable grounds to believe Zündel will engage in activity that constitutes a threat to the security of Canada. A comparison of those allegations and SIRC’s statements in the Heritage Front Report reveals the following parallels:

1. The statement of circumstances alleges that Zündel “espouses radical right-wing causes.”

The Heritage Front Report includes Zündel in the “radical right”.

2. The statement of circumstances alleges that Zündel operates a publishing company, which is one of the world’s major sources of Holocaust denial material and which feeds the fires of hatred in Central Europe.

The Heritage Front Report repeatedly refers to Zündel as a “Holocaust denier” and a publisher of “hate literature”.

3. The statement of circumstances alleges Zündel broadcasts anti-semitic propaganda.

The Heritage Front Report groups Zündel in the same category as “aggressive racists.”

4. The statement of circumstances alleges that as a consequence of “Zündel’s participation, involvement and support of the neo-Nazi/white supremacist movement in Canada to achieve a political objective … there were reasonable grounds to believe that Mr. Zündel is in a position to direct his followers to commit acts of serious violence.” [Emphasis added.]

The Heritage Front Report articulated SIRC’s unshakeable conviction that Canada should continue to ensure it is always aware of what is going on within extreme right wing racist and neo-Nazi groups, and that Canadians should never again underestimate the potential for harm embodied in hate-driven organizations. As SIRC had earlier in the Heritage Front Report characterized Zündel as part of the radical right wing and as a racist and publisher of hate literature, it can be inferred that SIRC also is of the view that embodied in Zündel’s statements and activities is the potential for harm referred to supra.

In my view, the above statements of SIRC in the Heritage Front Report are more than sufficient to cause an informed person, viewing the matter realistically and practically, and having thought the matter through to conclude there is a reasonable apprehension of bias of SIRC toward Zündel. Accordingly, I am satisfied that the informed bystander test for bias has been met.

This conclusion is undoubtedly sufficient to dispose of this matter. However, I think it necessary, in the unusual circumstances of this case, to make some additional observations. In my view, some of SIRC’s statements supra, go beyond the informed bystander test. In reality, they demonstrate a prejudgment of issues before SIRC in the impugned proceedings. Accordingly, in order to refute the allegations against him, Zündel would have to convince SIRC that the views SIRC previously professed are unfounded. The foreword to the Heritage Front Report describes the importance of the report in the following paragraph excerpted therefrom:

What sets this report apart from all the other reports we have sent to the Solicitor General is the fact that most of it, perhaps all of it, will be made public. This will occur because the allegations against CSIS were so serious that the Security Intelligence ‘system’ established by Parliament in 1984 was in danger of losing the public’s trust. Readers of the “Heritage Front Affair” will be able to judge for themselves the effectiveness of the accountability procedures put in place by the CSIS Act , and the Review Committee’s role in that structure.[49]

The Executive Director attempted to alleviate Zündel’s concerns of bias by advising him that SIRC is not bound to take into consideration any position previously taken by SIRC.[50] However, in my view, taking into consideration the context in which the Heritage Front Report was written, a reasonable apprehension of bias is created by putting Zündel in the position of having to persuade the same committee that made the statements and findings in the Heritage Front Report that they are in fact unfounded.

It was submitted by SIRC’s counsel that SIRC as a whole could not be biased because an entire agency could not be tainted by bias.[51] In support of this submission SIRC relied on the B.C. Court of Appeal decision in Bennett v. British Columbia (Securities Commission).[52] In the case at bar, the basis of the reasonable apprehension of bias of SIRC toward Zündel is a report, namely, the Heritage Front Report, which was prepared by all the members of SIRC.[53] Moreover, the member of SIRC who was to conduct the impugned proceedings, Mr. Jacques Courtois, P.C., Q.C.,[54] was sitting as a member of SIRC when the Heritage Front Report was written.[55] However, even so, taking into consideration that all of the members of SIRC were responsible for the Heritage Front Report and the context in which it was written, discussed supra, I do not find this argument of SIRC persuasive on the undisputed facts of this case.

Finally, before I dispose of this issue, I must address the submissions of SIRC with respect to the Supreme Court of Canada decision in Brosseau v. Alberta Securities Commission.[56] In Brosseau, the Court held that a reasonable apprehension of bias did not arise on account of the Chairman of the Alberta Securities Commission performing the dual role of investigator and adjudicator, because the overlap of functions was authorized by the statute. Justice L’Heureux-Dubé held that the structure of the Securities Act,[57] which permitted the commissioners to be involved in both the investigatory and adjudicatory functions, did not, by itself, give rise to a reasonable apprehension of bias.[58]

There are several reasons why the decision in Brosseau does not alter my view that there is a reasonable apprehension of bias in the case at bar. Firstly, it is not the legislative scheme created by the Citizenship Act and CSIS Act, by itself, that necessarily gives rise to a reasonable apprehension of bias. Rather, there are prior statements and findings of SIRC that give rise to a reasonable apprehension of bias, in some instances going beyond that and demonstrating a prejudgment of the issues before SIRC, in the impugned proceedings.

Secondly, the nature and role of the administrative board in the case at bar is significantly different from that in Brosseau. The board in Brosseau was the Alberta Securities Commission, the functions of which were described by Justice L’Heureux-Dubé as follows:

Securities commissions, by their nature, undertake several different functions. They are involved in overseeing the filing of prospectuses, regulating the trade in securities, registering persons and companies who trade in securities, carrying out investigations and enforcing the provisions of the Act. By their nature, they will have repeated dealings with the same parties. The dealings could be in an administrative or adjudicative capacity.[59]

In short, the Securities Commission regulates the trade of securities in Alberta. The administrative board in the case at bar, SIRC, when functioning pursuant to section 19 of the Citizenship Act, performs a paramount role in the determination of whether there are reasonable grounds to believe that a citizenship applicant will engage in activities that constitute a threat to the security of Canada. The impact of such a determination has potentially grave consequences for the citizenship applicant. Accordingly, in view of the significant difference between the nature and role of SIRC and that of a securities commission, I am of the view this case is thereby distinguishable on that basis from the decision in Brosseau.

The nature of SIRC’s function, with respect to the proceedings in issue, is more akin to the function of the Canadian Human Rights Tribunal, which was in issue in the Federal Court of Appeal decision in MacBain v. Lederman[60] In MacBain, the Court held that the adjudicative structure of the Canadian Human Rights Act[61] (the CHRA) contained an inherent bias. The legislative scheme required the Canadian Human Rights Commission (the Commission) to investigate complaints made pursuant to the CHRA. If the Commission found the complaint was substantiated, it then appointed the members of Canadian Human Rights Tribunal (the Tribunal) to deal with the matter. The Commission then prosecuted the complaint in the Tribunal proceedings which followed. Thus, in essence, the prosecutor (the Commission) appointed the judge (the Tribunal) in its own cause. The Federal Court of Appeal concluded that this legislative scheme gave rise to a reasonable apprehension of bias.

In my view the MacBain decision is useful, as the nature of the proceedings before the SIRC are more akin to those arising under the CHRA then they are to those arising under the Securities Act.

SIRC’s counsel submitted that if the Court were to find a reasonable apprehension of bias in the case at bar, that “SIRC would be rendered powerless to carry out its statutory mandate and CSIS would not be subject to any review. The purpose of the establishment of the Committee would be substantially frustrated”.[62] This is, essentially, an in terrorem argument that I do not find persuasive. This decision relates to the very specific and unusual facts of this case. I am not persuaded that it will render SIRC powerless to exercise its jurisdiction in other factual situations. In these circumstances the Court should not place the stamp of approval on proceedings being conducted in breach of the duty of fairness, as established by uncontradicted evidence showing a reasonable apprehension of bias.

As a final note, I would add that I have only reached this conclusion after much anxious consideration. I am not unaware that, possibly, an element of Canadian society strongly disagrees with the alleged views and activities of this applicant. However, the fact remains that he has been a permanent resident of Canada since 1958. In 1993, when he applied for Canadian citizenship he had every right to do so. In making that application, Zündel became subject to the provisions of the Citizenship Act. When the section 19 proceedings were invoked against him and SIRC’s investigative process began to unfold, Zündel, as the object of the investigation, acquired the right to procedural fairness for the reasons given supra.

As noted earlier, this decision is not about the issue in the proceedings before SIRC, i.e. whether there are reasonable grounds for believing that Zündel will engage in activity that constitutes a threat to the security of Canada. This decision is about whether, in the circumstances of this case, a reasonable apprehension of bias on the part of SIRC has been shown, which would prevent SIRC from continuing with the section 19 proceedings instituted against Zündel.

Accordingly, and for the foregoing reasons, I have concluded, on these facts, that a reasonable apprehension of bias by SIRC toward Zündel has been proven. It follows, in my view, that Zündel is entitled to an order prohibiting SIRC from carrying out the proceedings mandated by section 19 of the Citizenship Act relating to his application for citizenship. I freely acknowledge that, as a consequence of this decision, the legislative scheme envisaged by the Citizenship Act and the CSIS Act will have been thwarted with respect to Zündel’s citizenship application. Perhaps, in such circumstances, the question of an effective remedy can only be addressed through legislative action.

3.         Should the Court grant an order quashing SIRC’s proceedings as a breach of Zündel’s rights as protected by paragraphs 2(b) and (d) of the Charter or alternately, exclude such evidence as is in breach of these rights?

Zündel has failed to establish an infringement of his rights of freedom of expression and freedom of association, as protected by paragraphs 2(b) and (d) of the Charter. Accordingly, the Court will not grant an order quashing SIRC’s proceedings on this basis, nor will it exclude any evidence on this basis.

IV.       CONCLUSION

A.        Status of SIRC

Compliance with Rule 1611 has been waived, and SIRC is granted leave to intervene in these proceedings. The style of cause shall be amended accordingly.

B.        Notice of Motion, filed May 23, 1996, by the Minister

For the foregoing reasons, I am granting the Minister’s motion for an order striking out the following documents from Zündel’s supplementary application record:

Tab A. Affidavit of Wolfgang Droege, sworn April, 1996;

Tab B. Affidavit of Donna Elliott, sworn March 22, 1996;

Tab C. Affidavit of Wayne Elliott, sworn March 22, 1996;

Tab D. Affidavit of Eric Fischer, sworn March 24, 1996;

Tab E. Affidavit of Max French, sworn March 24, 1996;

Tab F. Affidavit of Gerry Lincoln, sworn March 24, 1996;

Tab G. Affidavit of Tyrone Mason, sworn May 9, 1996; and

Tab H. Affidavit of Ernst Zündel, sworn May 9, 1996.

The remaining documents found at Tabs I, J and K will be permitted to be filed as part of the supplementary application record.

As neither party spoke to costs of this motion, there shall be no order as to costs.

C.        Application for Judicial Review, filed March 7, 1996, by Zündel

With respect to the admissibility of the Kulaszka affidavit, it is admissible with the exception of paragraph 18, which is inadmissible. With respect to Exhibits B, C and G thereto, the said exhibits are admissible only to establish the media attention given to the Heritage Front Affair and not as evidence of the truth of their contents.

For the aforesaid reasons, I am granting an order prohibiting SIRC from carrying out the proceedings mandated by section 19 of the Citizenship Act, with respect to Zündel’s application for citizenship dated October 24, 1993.

Since no special reasons for costs have been shown, and pursuant to Rule 1618 of the Federal Court Rules, no costs are ordered.

While the decision of this application was under reserve, Zündel’s counsel wrote to the Court under date of June 21, 1996, requesting leave to submit additional material with respect to the case before me. Counsel intended that this material be filed in support of his submissions made at the hearing relating to systemic bias. However, since I have concluded, for the reasons given supra, that a reasonable apprehension of bias by SIRC toward Zündel has been shown on the evidence adduced, it becomes unnecessary, in my view, to specifically address the issue of systemic bias. Accordingly, the request by Zündel’s counsel to file additional material is dismissed.

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