T-460-88
Secretary of State (Applicant)
v.
Jacob Luitjens (Respondent)
INDEXED AS: CANADA (SECRETARY OF STATE) V. LUITJENS
Trial Division, Collier J.—Vancouver, September
27, 1988.
Citizenship — Revocation — Citizenship granted under
former Act, requiring evidence of good character — Revoca
tion proceedings commenced under new Act, which is silent as
to good character — Respondent not disclosing Nazi party
involvement during World War I/ — Evidence as to good
character admissible — Whether Charter s. 15 applicable —
Standard of proof.
Construction of statutes — Repeal and substitution —
Whether evidence as to issue of good character admissible in
revocation proceedings commenced under present Citizenship
Act, which is silent as to evidence of good character —
Citizenship granted under former Act requiring such evidence
— Interpretation Act, ss. 35 and 36 governing — Substantive
rights governed by Act under which accrued — Procedure
governed by Act in force when legal proceedings commenced.
Constitutional law — Charter of Rights — Equality rights
— Charter, s. 15 not applicable to proceedings to revoke
citizenship granted in 1971 — Proceedings dealing with pre-
1977 law — Although citizen granted citizenship under present
Act not subject to same good character requirement as person
granted citizenship under former Act, difference in issues and
law not creating inequality before law.
The respondent had been granted citizenship under the
former Citizenship Act, which required evidence of good char
acter. The Secretary of State commenced revocation proceed
ings under the new Act on the ground that he had obtained
citizenship by "knowingly concealing" material circumstances.
The respondent had not disclosed his involvement with the
Dutch Nazi Party during World War I1. The new Act is silent
as to evidence of good character, and changes the revocation
procedure. The issues in this reference to the Court by the
Minister were: (I) whether evidence as to good character was
admissible; (2) whether Charter, section 15 should apply, as a
person granted citizenship under the new Act does not have to
meet the requirement of good character; (3) whether the
standard of proof required in criminal proceedings should
apply, i.e. proof beyond a reasonable doubt.
Held, (1) evidence as to good character was admissible; (2)
Charter, section 15 had no application; (3) the appropriate
standard of proof was a high degree of probability.
Sections 35 and 36 of the Interpretation Act governed. The
Deschênes Commission found that in the matter of revocation
of citizenship, substantive rights should be governed by the Act
under which they accrued and procedure by the Act in force
when the legal proceedings were commenced.
Evidence as to "good character" was relevant to revocation
as citizenship had been granted without certain material cir
cumstances being disclosed. The only difference is one of
procedure. Before 1977, an inquiry was conducted by someone
with a judicial background, or by a provincial superior court.
Now the matter is dealt with in Federal Court.
The Charter, section 15 had no application, as the revocation
proceedings dealt with matters and the law as it stood prior to
1977. A difference in issues and the law in respect of them does
not create any inequality before the law between individuals.
This proceeding was civil in nature and the standard of proof
required was a high degree of probability, given the serious
consequences if citizenship was revoked.
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.), s. 15.
Canadian Citizenship Act, R.S.C. 1970, c. C-19, ss.
10(1)(c),(d), 18.
Citizenship Act, R.S.C., 1985, c. C-29.
Citizenship Act, S.C. 1974-75-76, c. 108, ss. 9, 17.
Interpretation Act, R.S.C. 1970, c. 1-23, ss. 35, 36.
Interpretation Act, R.S.O. 1950, c. 184.
The Canadian Citizenship Act, S.C. 1946, c. 15.
CASES JUDICIALLY CONSIDERED
APPLIED:
Khawaja y Secretary of State for the Home Dept.,
[1983] I All ER 765 (H.L.).
DISTINGUISHED:
Durkee v. Minister of Highways (1975), 13 N.S.R. (2d)
146 (S.C.); Eisener v. Minister of Lands and Forests
(1974), 10 N.S.R. (2d) 160 (C.A.); Re Martell (1957),
11 D.L.R. (2d) 731 (Ont. C.A.).
AUTHORS CITED
Canada. Commission of Inquiry on War Criminals.
Report. Part I. Ottawa, December 30, 1986.
COUNSEL:
William J. A. Hobson, Q.C., Arnold S. Frad-
kin and Joseph Rikhof for applicant.
John A. Campbell for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
John A. Campbell, Vancouver, for respon
dent.
The following are the reasons for judgment
delivered orally in English by
COLLIER J.: I will make my rulings on the
points raised yesterday by Mr. Campbell on behalf
of Mr. Luitjens.
This proceeding is a "case" referred to the
Federal Court.
The statutory provisions giving rise to the refer
ral are certain sections of the Citizenship Act, S.C.
1974-75-76, c. 108, and the former statute, the
Canadian Citizenship Act, R.S.C. 1970, c. C-19.
For convenience, I shall sometimes refer to the
Citizenship Act now in effect as the present Act or
the 1976 Act. Although I am aware that that
statute did not come into force until 1977.
I note it now appears in the Revised Statutes of
Canada, 1985 as c. C-29. In the 1985 Revision, the
sections have been renumbered. But the 1985 stat
utes, so far as I know, have not yet come into
force. So I shall use the so-called present
numbering.
I shall sometimes refer to the pre-1976 Act as
the old Act, or the former Act, or the 1946 Act
[The Canadian Citizenship Act, S.C. 1946, c. 15].
Sections 9 and 17 of the present Act are as
follows:
9. (I) Subject to section 17 but notwithstanding any other
section of this Act, where the Governor in Council, upon a
report from the Minister, is satisfied that any person has
obtained, retained, renounced or resumed citizenship under this
Act by false representation or fraud or by knowingly concealing
material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be
deemed to have had no effect,
as of such date as may be fixed by order of the Governor in
Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by
false representation or fraud or by knowingly concealing ma
terial circumstances if
(a) he was lawfully admitted to Canada for permanent
residence by false representation or fraud or by knowingly
concealing material circumstances; and
(b) he subsequently obtained citizenship because he had
been admitted to Canada for permanent residence.
17. (1) The Minister shall not make a report under section 9
unless he has given notice of his intention to do so to the person
in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on
which the notice is sent, request that the Minister refer the
case to the Court; or
(b) that person does so request and the Court decides that
the person has obtained, retained, renounced or resumed
citizenship by false representation or fraud or by knowingly
concealing material circumstances.
(3) A decision of the Court made under subsection (1) is
final and conclusive and, notwithstanding any other Act of
Parliament, no appeal lies therefrom.
In this matter, the Secretary of State notified
Mr. Luitjens he proposed to make a report under
section 9. The notice, dated January 21, 1988
reads, in part, as follows:
Take notice that the Secretary of State of Canada intends to
make to the Governor in Council a report within the meaning
of sections 9 and 17 of the Citizenship Act, S.C. 1974-75-76, c.
108, and section 18 of the Canadian Citizenship Act, S.C.
1946, c. 15 ... on the grounds that you have been admitted to
Canada for permanent residence and have obtained Canadian
citizenship by false representations or fraud or by knowingly
concealing material circumstances.
The notice then went on to allege Mr. Luitjens
had failed to divulge to Canadian immigration and
citizenship officials his membership in the Dutch
Nazi Party and other organizations, and had failed
to divulge his alleged involvement in what I would
loosely term collaborationist activities with the
German forces when Holland was occupied by
those forces during the Second World War.
Mr. Luitjens asked that the "case" be referred
to the Court.
Before ruling on those preliminary matters
raised it is necessary to state some additional facts.
It is not in dispute that Mr. Luitjens came to
Canada in 1961. He applied for Canadian citizen
ship in 1971. He was granted citizenship in the
same year.
All that took place while the old Act was in
force. It was, as I earlier noted, repealed and
replaced in 1976. This revocation proceeding was,
however, commenced under the new or present
Act.
Under the old Act the appropriate Minister
could grant a certificate of Canadian citizenship if
the applicant met a number of requirements.
Among other things he had to satisfy a Court he
has "been lawfully admitted to Canada for perma
nent residence", and "he is of good character":
paragraphs 10(1) (c) and 10(1) (d).
Under the present legislation, there is no
requirement that an applicant for citizenship be of
good character. The revocation proceedings under
the former statute were set out in section 18. The
operative words were: "has obtained Canadian
citizenship by false representation or fraud or by
concealment of material circumstances."
In the present statute the relevant provisions are
the same except the words "by knowingly conceal
ing" have been substituted for "by concealment
of".
Section 18 went on to provide that the person
against whom the Minister proposed making a
report could claim "that the case be referred for
such inquiry as is hereinafter specified."
The inquiry was then held before a Commission
presided over by a person who held or had held
high judicial office. Alternatively, the inquiry
might be held by the superior court of a province.
Finally, I note the former statute is silent as to
what happened when the inquiry was completed.
Nothing was set out as to whether the Commission
or superior court was to make a report, recommen
dation, finding or decision.
All the foregoing leads to Mr. Campbell's first
point. The Secretary of State in this case proposes
to lead evidence on whether Mr. Luitjens, when he
applied for citizenship in 1971, was of "good
character".
It is conceded this Court, the Federal Court, has
jurisdiction to hear this "case" that has been
referred to it. But, it is argued, this Court does not
have jurisdiction to now hear evidence as to good
character or not in this proceeding which is based
on the 1976 statute, the new legislation. Put
another way, that particular kind of evidence is no
longer admissible under the new Act.
This point involves the application, and the
effect in this case of certain portions of sections 35
and 36 of the Interpretation Act, R.S.C. 1970, c.
I-23.
The provisions of section 35 have been, to my
mind, accurately summarized in the Report of the
Commission of Inquiry on War Criminals, Part I,
at page 176, and I quote:
Stripped of its unnecessary wording for our purposes, s. 35
provides that where an enactment is repealed, the repeal does
not affect any right or liability acquired or incurred under the
enactment so repealed; does not affect a violation of the
provisions of the enactment so repealed or any forfeiture
incurred under such enactment; it does not affect any remedy
in respect of any such right, liability or forfeiture; and a remedy
may be instituted or enforced and the forfeiture may be
imposed as if the enactment had not been so repealed.
I shall, from now on, refer to that report as the
Deschênes Commission.
The relevant portion of section 36 of the Inter
pretation Act is paragraph (d).
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefore,
(d) the procedure established by the new enactment shall be
followed as far as it can be adapted thereto in the recovery or
enforcement of penalties and forfeitures incurred, and in the
enforcement of rights, existing or accruing under the former
enactment or in a proceeding in relation to matters that have
happened before the repeal;
The Deschênes Commission concluded [at page
176], after summarizing the provisions of section
35 already quoted, as follows:
Once those interpretation principles are applied to our citi
zenship legislation, the perpetuation through 1976 and up to
this day of the right of the Crown and the liability of the citizen
to revocation of citizenship under the repealed 1946 Act could
not be more clearly stated. So much for the text of the
Citizenship Act.
As to the procedure, the Commission continued
[at page 177], and again I quote:
It is s. 36(d) of the Interpretation Act which governs (it is
quoted above). In agreement with the generally accepted
theory, it provides for the immediate application of laws of
procedure to past events and to pending proceedings.
True, in Eisener v. Minister of Lands and Forests, the Nova
Scotia Court of Appeal took a different view of the impact of
ss. 22(3)(d) of the Interpretation Act of Nova Scotia which
used the same wording as s. 36(d) of the Canadian Interpreta
tion Act. It stressed that ss. 22(3)(d) provided for the substitu
tion of the new procedure "as far as it can be adapted". Now
the new Nova Scotian Statute provided for "an entirely differ
ent type of proceeding before a different tribunal with different
rights of appeal" (ibid.). But the situation here is vastly
different inasmuch as the whole procedure remains the same,
and the only change lies in the fact that the hearing is moved
from the Superior Court to the Federal Court, an easy "adapta-
tion" to make.
Much closer to our situation were the facts in Re Martell.
There the courts had to apply ss. 14(2)(c) of the Interpretation
Act of Ontario. This paragraph again used the same wording as
s. 36(d) of the Canadian Interpretation Act. The situation of
fact which formed the basis of the action had actually crystal
lized before the repeal of the former enactment (as here) and
the proceedings had been initiated after that repeal (as they
would here): the Court of Appeal of Ontario decided that the
new procedure should apply.
The Commission, therefore, FINDS that:
In the matter of denaturalization, the substance of the rights
of the Crown and the rights and liabilities of the citizen
should be governed by the Act under which they accrued,
even if the Act was repealed in the meantime; the procedure
should be governed by the Act in force when the legal
proceedings are commenced.
Mr. Hobson, counsel for the Secretary of State,
relied on the findings and conclusions of the Des -
chênes Commission to support his argument that
evidence of character is permissible in proceedings
launched after 1975; that this Court has jurisdic
tion to hear that kind of material.
Mr. Campbell, on the other hand, contended the
Deschênes Commission was wrong in its comments
on the Eisener case; that it did not consider
Durkee v. Minister of Highways (1975), 13
N.S.R. (2d) 146 (S.C.). On behalf of Mr. Luit-
jens, it was said a careful reading of the Eisener
[Eisener v. Minister of Lands and Forests (1974),
10 N.S.R. (2d) 160 (C.A.)], Durkee and Martell
[Re Martell (1957), 11 D.L.R. (2d) 731 (Ont.
C.A.)] decisions does not give this Court jurisdic
tion to hear the evidence purportedly impugning
character.
I have carefully considered the three decisions.
In Eisener, the problem was whether the tri
bunal, under the former statute, could hear an
expropriation proceeding launched under that stat
ute; a different tribunal had come into existence
under subsequent amending and repealing provi
sions.
In Durkee slightly different circumstances
arose. The same statutes were involved. The expro
priation had taken place under the old statute. The
proceedings were launched under the new. The
Court held the new tribunal was the only one to
hear the matter.
In Martell, an applicant for child support
brought proceedings, in her own name, based on
an agreement made under former legislation.
There was default. Under the old Act, only a
provincial official could bring the default proceed
ings. Under the new legislation the applicant could
herself bring the proceedings. The Court decided
the Interpretation Act of Ontario [R.S.O. 1950,
c. 184], dealing with repealed and new legislation
applied and the applicant's status to sue was
upheld.
Those decisions are not easy to reconcile. I had
more difficulty with this point than apparently the
Deschênes Commission had. Essentially, the three
cases dealt, not with admissibility of evidence, or
jurisdiction to hear it, but with other procedural
matters.
Here, Mr. Luitjens applied for citizenship under
the former statute. The grant was obtained based
on information given and statements made and in
the absence of material circumstances that, it is
now said, ought to have been disclosed. It is that
grant that Canada now seeks to revoke. Evidence
as to the issue of "good character" appears, to me,
relevant.
I see no reason why it is not relevant in 1988
when the grant is sought to be revoked. The only
difference is that the procedure is now before the
Federal Court instead of, before 1977, an inquiry
conducted by someone with a judicial background,
or a provincial superior court.
I rule that the Secretary of State is entitled to
adduce the challenged type of evidence in this
proceeding, and that this Court has jurisdiction to
hear it and to act on it.
I have not overlooked Mr. Campbell's submis
sion that section 15 of the Charter [Canadian
Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] should be applied:
the equality provision. Mr. Luitjens, it is said, is
faced with the issue of good character. A citizen
who obtained a grant under the new Act and
whose citizenship is to be revoked, does not have to
meet that issue of good character.
In my opinion, section 15 has no application
here. The revocation proceedings in this case must,
of necessity, deal with certain pre-1977 matters
and the law as it stood at that time.
A difference in issues, and the evidence in
respect of them, does not, to my mind, create any
inequality before the law between individuals.
The next matter for decision is this. Mr. Camp-
bell submitted that while this proceeding is not a
criminal proceeding, it is criminal in nature; the
onus of proof on the Secretary of State should be
the criminal standard; proof beyond a reasonable
doubt.
I do not have as much difficulty with that point
as I had in respect of the "jurisdictional" issue.
From a review of the authorities cited, I am
satisfied the present proceeding is a civil proceed
ing. I had been tempted, alternatively, to use the
phrase, a quasi-criminal proceeding. That, to my
mind, would be too imprecise and create
confusion.
The standard of proof required in civil proceed
ings is a preponderance of evidence, or a balance
of probabilities. But in that standard there may be
degrees of the quality of the proof required.
The position I shall adopt here is that as set out
by Lord Scarman in Khawaja y Secretary of State
for the Home Dept., [1983] 1 All ER 765 (H.L.),
at page 780. A high degree of probability is, in my
opinion, required in a case of this kind. What is at
stake here is very important; the right to keep
Canadian . citizenship, and the serious conse
quences which may result if that citizenship
ceases.
That concludes my rulings and my reasons.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.