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T-1585-84
In re the Citizenship Act and in re Charles Emmanuel Noailles (Appellant)
Trial Division, Dubé J.—Montreal, April 12; Ottawa, May 22, 1985.
Citizenship — S. 20(2) of Citizenship Act prohibiting grant of citizenship if applicant convicted of indictable offence during three-year period preceding application — S. 20(2) not contravening s. 11(h) of Charter guaranteeing right not to be tried or punished for indictable offences again iffinally found guilty — S. 11 applying only in criminal proceedings: Re James and Law Society of British Columbia (1982), 143 D.L.R. (3d) 379 (B.C.S.C.) — Dismissal of citizenship applica tion not second penalty, but civil consequence of indictable offence — Citizenship Act, S.C. 1974-75-76, c. 108, s. 20(2) (as am. by S.C. 1977-78, c. 22, s. 8) — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
Constitutional law — Charter of Rights — Criminal process
— Appeal from refusal of citizenship application pursuant to s. 20(2) of Citizenship Act preventing grant of citizenship to applicants convicted of indictable offence during three-year period immediately preceding application — Appeal dismissed
— S. 20(2) not contrary to Charter s. 11(h) guaranteeing right not to be tried or punished for indictable offence again if finally found guilty — Re James and Law Society of British Columbia (1982), /43 D.L.R. (3d) 379 (B.C.S.C.) establishing s. 11 of Charter applying only in criminal proceedings — Application for citizenship civil proceeding — Citizenship Act, S.C. 1974-75-76, c. 108, s. 20(2) (as am. by S.C. 1977-78, c. 22, s. 8) — Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982. c. 11 (U.K.).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re James and Law Society of British Columbia (1982), 143 D.L.R. (3d) 379 (B.C.S.C.).
CONSIDERED:
In re Lamb, 296 N.E.2d 280 (Ohio Ct. App. 1973); Rosenbaum v. Law Soc. of Man., [1983] 5 W.W.R. 752 (Man. Q.B.); Belhumeur v. Discipline Ctee. of Que. Bar Assn. (1983), 34 C.R. (3d) 279 (Que. S.C.).
REFERRED TO:
R. v. Wooten (1983), 5 D.L.R. (4th) 371 (B.C.S.C.); Bowen v. Minister of Employment and Immigration, [1984] 2 F.C. 507 (C.A.); R. v. Cole, [1980] 6 W.W.R. 552 (Man. Cty. Ct.).
COUNSEL:
Jean Parcigneau for appellant. Pierre Paquette, amicus curiae.
SOLICITORS:
Jean Parcigneau, Montreal, for appellant. Paquette, Nolan & Associés, Laval, amicus curiae.
The following is the English version of the reasons for judgment rendered by
DuaÉ J.: This is an appeal from a decision of a judge of the Canadian Citizenship Court, dismiss ing the appellant's application on the ground that he was convicted of an indictable offence during the three-year period immediately preceding the date of his application, contrary to the provisions of subsection 20(2) of the Citizenship Act [S.C. 1974-75-76, c. 108 (as am. by S.C. 1977-78, c. 22, s. 8)].
At the hearing of this appeal, counsel for the appellant alleged that section 20 of the Citizenship Act constituted a breach of the legal guarantee given to him by paragraph 1 1 (h) of the Canadian Charter of Rights and Freedoms [being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)], which reads as follows:
11. Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; ...
Counsel based his allegation primarily on Lamb,' a decision of the Ohio Court of Appeal that prisoners who have escaped and have already been convicted and sentenced on this account cannot be placed in punitive detention, since this constitutes the imposition of a double penalty for the same offence in breach of the Fifth and Four teenth Amendments to the U.S. Constitution.
In Re James and Law Society of British
' 296 N.E.2d 280 (Ohio Ct. App. 1973).
Columbia,' the Court had to determine whether a lawyer called before a disciplinary committee of the Bar of his province could rely on paragraph 11(c) of the Charter (the right not to be compelled to testify against oneself). The Court held that the section in question applied only in criminal pro ceedings: the disciplinary proceeding in question was civil in nature.
Another lawyer whose conduct was drawn to the attention of the disciplinary committee of the Manitoba Bar as perjury, sought to obtain a writ of prohibition against the said inquiry. In that case (Rosenbaum v. Law Soc. of Man.),' the Court held that the potentially serious consequences in professional terms did not convert such a civil proceeding into a criminal one, so as to make section 11 of the Charter applicable: the latter applies only to an offence.
Regarding another case before the Bar (Bel - humeur v. Discipline Ctee. of Que. Bar Assn.), 4 flugessen J., now of the Federal Court of Appeal, concluded as follows [at page 284]:
[TRANSLATION] In my view, the rights guaranteed by s. 11 are only guaranteed in connection with the exercise by the State of the public right of prohibition and punishment. They have nothing to do with private law or with the essentially civil privileges conferred on the members of various professions.
The question at issue here also arose in an immigration matter, and the courts have generally held that paragraph 11(c) cannot be used to sup port a refusal to testify in inquiries held in such matters under the Immigration Act, 1976 [S.C. 1976-77, c. 52]. 5
The general purport of the Citizenship Act clearly indicates that the proceeding by which an individual asks the State to confer on him the privilege of becoming one of its citizens is a civil proceeding. The statute does not regard such a person as someone charged with an offence, does not try him again and does not punish him again.
2 (1982), 143 D.L.R. (3d) 379 (B.C.S.C.).
3 [1983] 5 W.W.R. 752 (Man. Q.B.).
° (1983), 34 C.R. (3d) 279 (Que. S.C.).
5 R. v. Wooten (1983), 5 D.L.R. (4th) 371(B.C.S.C.); Bowen v. Minister of Employment and Immigration, [ 1984] 2 F.C. 507 (C.A.); R. y Cole, [1980] 6 W.W.R. 552 (Man. Cty. Ct.), is the exception.
However, a criminal offence committed by such a person has consequences for which he must answer, just as a criminal may have caused physi cal damage or injury to another and is so subject to a civil suit in addition to a criminal prosecution.
One of the repercussions of the offence commit ted by the appellant is the dismissal of his applica tion for citizenship. By his own action he delayed obtaining the privilege of becoming a Canadian citizen. In other words, the dismissal of his application for citizenship is not a second penalty imposed on him but a civil consequence of his indictable offence.
After all, Canada has the right to protect itself by denying the privilege of citizenship to someone who does not meet the criteria legitimately estab lished by an Act of Parliament. It is quite just and reasonable that no one should be able to receive citizenship if during the three-year period immedi ately preceding his application he has been con victed of an offence or of an indictable offence under any Act of Parliament.
The appeal is accordingly dismissed.
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