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T-2645-81
In re the Citizenship Act and in re Susan Holven- stot (Appellant)
Trial Division, Verchere D.J.—Courtenay, Octo- ber 2; Vancouver, October 26, 1981.
Citizenship — Appeal from refusal of application for citi zenship pursuant to para. 20(l)(6) of the Citizenship Act Appellant had been charged with an indictable offence, but proceedings had been stayed — Citizenship Judge held that because the Crown was entitled under subs. 508(2) of the Criminal Code to recommence proceedings on the stayed charge within one year of the stay, the appellant was still a person charged with an indictable offence — Appellant obtained a letter stating that the Crown did not intend to proceed further with the charge — Whether the letter estops the Crown from further proceeding with the charge — Wheth er the estoppel of further proceedings on the stayed charge renders the charge a nullity and outside the scope of para. 20(1)(b) — Appeal allowed — Citizenship Act, S.C. 1974-75- 76, c. 108, s. 20(1)(b) — Criminal Code, R.S.C. 1970, c. C-34, s. 508(1),(2) — Narcotic Control Act, R.S.C. 1970, c. N-1, s. 6 — Federal Court Rule 916.
Robertson v. Minister of Pensions [1949] 1 K.B. 227, applied. R. v. McLeod (1970) 74 W.W.R. 319 (B.C. Supreme Court), referred to.
APPEAL. COUNSEL:
Susan Holvenstot on her own behalf. James E. Dow, amicus curiae.
SOLICITORS:
Susan Holvenstot on her own behalf.
James E. Dow, Courtenay, for amicus curiae.
The following are the reasons for judgment rendered in English by
VERCHERE D.J.: This appeal from the refusal by a Judge of the Citizenship Court to approve the appellant's application for citizenship came before me as a new hearing at which the appellant sub mitted new evidence. It consisted of a letter dated April 27, 1981, which had been given to the appel lant's then solicitor by an associate of counsel retained by the Crown for the prosecution of drug- related offences in the Courtenay area reading as follows:
I am writing further to your letter of April 9, 1981, regard ing Ms Holvenstot. This is to advise you that the Crown does not intend to take further proceedings against Ms Holvenstot on the charge of cultivating marihuana. Trusting this is the information you require....
The charge referred to above is clearly for an indictable offence: see Narcotic Control Act, R.S.C. 1970, c. N-1, section 6. It had been laid on August 18, 1980, but not proceeded with until, on March 18, 1981, after its existence had been duly disclosed at the citizenship hearing, it was stayed by the Crown pursuant to subsection 508(1) of the Criminal Code, R.S.C. 1970, c. C-34. Following the stay, the hearing was resumed and concluded on March 31, 1981, when the learned Judge refused her approval because she was of the opin ion that as the Crown was entitled under subsec tion 508(2) of the Code to recommence proceed ings on the stayed charge within one year of the stay, the appellant was still a person charged with an indictable offence and therefore a person to whom a grant of citizenship was prohibited by paragraph 20(1)(b) of the Citizenship Act, S.C. 1974-75-76, c. 108. The appellant thereupon obtained the above-quoted letter and promptly gave notice of appeal.
During the appeal proceedings the amicus curiae suggested that the decision stated in the letter would not bind another prosecutor with instructions to continue proceedings on the stayed charge and expressed the view that for the period of one year from the date of the stay the appellant would therefore continue to be a person charged with an indictable offence. He cited no authority for that statement, but it seemed to me to raise the question of the liability of the Crown to estoppel, and also the doctrine of executive necessity. Accordingly, I reserved the matter for consider ation.
It seems clear that because of subsection 508(2) supra, no constraint on the Crown's future action on the charge arose because of the stay alone. For the statutory period mentioned there, the Crown is expressly permitted to continue proceedings on a
stayed charge. Furthermore, it has been held that apart entirely from subsection 508(2) proceedings on a stayed charge may be continued without any need to proceed by way of fresh prosecution for the same offence: see Regina v. McLeod (1970) 74 W.W.R. 319 (B.C. Supreme Court). Accordingly, I find myself in agreement with the view of the learned Citizenship Judge and I turn to consider the effect on the matter of the letter of April 27, 1981.
It has been said, and I accept it as correct, that an estoppel can bind the Crown: see Robertson v. Minister of Pensions [1949] 1 K.B. 227. There, Denning J., as he then was, held that a letter from the War Office to the appellant, which contained an express acknowledgement by the former of the source of the injuries in respect of which a pension was sought by the latter, fell within the principle "that if a man gives a promise or assurance which he intends to be binding on him, and to be acted on by the person to whom it was given, then, once it is acted upon, he is bound by it" [at page 231], and accordingly found in favour of the appellant. The question here, then, is whether the prosecutor's letter meets those tests.
It seems to me reasonably certain from the date of the letter, the contents of it and the prompt use to which the appellant put it that that use was in fact intended. That is to say, it seems reasonably certain that it was written and given to make it appear that the charge which had prohibited a grant of citizenship to the appellant need no longer be taken into account. The prosecutor apparently considered that if the Crown should obtain evi dence to support the charge which it was said was then lacking, it would be open to it to proceed by way of a fresh prosecution. Hence, it would seem no term was expressed (nor can one be implied) that the Crown was free to revoke its decision at its pleasure and that being so, it seems to me that further proceedings on the charge must be estopped and that, just as the doctrine of executive necessity was held inapplicable in the Robertson case, it is equally inapplicable here.
However, can the estoppel of further proceed ings on the already stayed charge equate the charge with a nullity for practical purposes and thus put it outside the scope and purview of para graph 20(1)(b) supra? In my opinion, it can and does do so and for the reasons already stated above, the answer to that question must be in the affirmative. Furthermore, it is to be noted that there was no suggestion that the Crown officers responsible for the stay and for the letter of April 27, 1981, had not considered and intended that such a result would ensue. Although I was not made aware of the contents of the solicitor's letter of April 9, 1981, it can be fairly assumed that he was seeking some action or some statement that would take the charge outside the operation of the prohibition; and in addition it is to be also noted that because a stay of proceedings is entirely the Crown's prerogative, in the exercise of which the Court has no part, the conclusion that the Crown's letter made the charge a nullity cannot cast any reflection on the power or the dignity of the Pro vincial Court in which the charge was laid.
For those reasons the appeal is allowed, and because the decision of the learned Citizenship Judge indicated that the requirements of the Citi zenship Act had been complied with and that the only bar was the prohibition already mentioned, I do not think that the matter need be sent back to her.
Accordingly, there will be a pronouncement that the appellant's application for citizenship is approved, to be forwarded by the Registry to the appellant, the Citizenship Judge concerned, the amicus curiae and the Minister pursuant to Rule 916.
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