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T-876-76
In re the Immigration Act, R.S.C. 1970, c. I-2 and in re the Canadian Citizenship Act, R.S.C. 1970, c. C-19 and in re an application by Robert Blaine Gray for a writ of prohibition against H. D. Mooney, a Special Inquiry Officer nominated by the Minister of Manpower and Immigration pur suant to subsection 11(1) of the Immigration Act and in re an immigration inquiry pending before H. D. Mooney, sitting at New Westminster, Brit- ish Columbia
Trial Division, Addy J.—Vancouver, March 1 and 18, 1976.
Immigration—Prerogative writs—Application for prohibi tion against section 25 inquiry—Whether Special Inquiry Officer has jurisdiction to determine whether applicant Canadian citizen Whether inquiry in case of person born in Canada restricted to Secretary of State Immigration Act, R.S.C. 1970, c. I-2, ss. 18(1)(e)(ii),(iii), 25, 26.
An inquiry was commenced pursuant to section 25 of the Immigration Act, and, after two adjournments, was not resumed by reason of applicant's request for prohibition. Because he was born in Canada, applicant argues that the Special Inquiry Officer has no jurisdiction to determine wheth er he is a Canadian citizen, alleging that in the case of a person born in Canada, an inquiry on that issue can only be conducted by the Secretary of State under sections 18 and 19 of the Canadian Citizenship Act. There is evidence before the Special Inquiry Officer which might establish that applicant has aban doned his Canadian citizenship.
Held, the motion is dismissed. Any inquiry which the Direc tor of the Immigration Branch of the Department of Manpower and Immigration decides to have made pursuant to section 25, and which is held pursuant to section 26 is limited to non-citi zens. Unless there is some statutory impediment to the con trary, it is axiomatic that any person, commission etc. charged with any inquiry and whose jurisdiction depends on the exist ence of a specific legal status etc., which in turn depends on the existence of certain facts, has not only the jurisdiction, but also the legal duty to inquire into the facts which are susceptible of determining whether or not the required status exists. As to applicant's argument that this principle does not apply because Parliament has enacted sections 18 and 19 of the Canadian Citizenship Act which require the question of loss of citizenship to be determined only by the Secretary of State, section 18 grants the power to declare finally that a citizen has ceased to be one should the Secretary of State wish to so decide. Section 19(1) authorizes reference by the Secretary of State to a commission or court as provided in section 18(3). There is nothing in section 18 which provides that for a Canadian citizen to lose his citizenship the Secretary of State must so declare. To accede to applicant's argument would mean that no Court or tribunal could determine the issue even if some of the rights, duties, etc. of citizenship might be under consideration
by it and vital to its decision, forcing reliance on the discretion of the Secretary of State. Nor would there be any forum in which any interested party could, as of right, have such issue determined. The gravest form of injustice, completely beyond control of the Courts could result, as the exercise of ministerial discretion under section 18 not to issue any order would not be reviewable by any Court but would be an exercise of executive power. Parliament did not intend to completely subordinate the law in sections 15 and 16 to the special provisions of section 18. And, even if it were held that an order made by the Secretary of State pertaining to loss of citizenship is binding on all other tribunals, this would not mean that regardless of the purpose for which the issue must be determined, the Secretary of State remains the sole authority with jurisdiction to determine it if it has not yet been determined.
Calgary Power Ltd. v. Copithorne [1959] S.C.R. 24; National Capital Commission v. Lapointe [1972] F.C. 568; The King v. City of Toronto [1946] Ex.C.R. 424 and Bawtinheimer v. Niagara Falls Bridge Commission [1950] 1 D.L.R. 33, applied.
ACTION. COUNSEL:
D. J. Sorochan for applicant. R. G. Wismer for respondent.
SOLICITORS:
Swinton & Company, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
ADDY J.: The Director of the Immigration Branch of the Department of Manpower and Immigration having received a written request under section 8 of the Immigration Act directed that an inquiry by a Special Inquiry Officer be held pursuant to section 25 as to the possible deportation of the applicant herein. The Special Inquiry Officer proceeded to hear the inquiry pro vided for in sections 26 and 27.
After some evidence had been heard, the hear ing was adjourned on two occasions and was to proceed again on the 3rd of March 1976 but was not resumed by reason of the present application for prohibition which had been launched in the meantime.
Subparagraphs (ii) and (iii) of section 18(1)(e) of the Immigration Act contain the enactments relevant to the present case.
There is no doubt that the right of an immigra tion officer to make a report pursuant to this enactment is limited to reports concerning persons who are not Canadian citizens. It follows equally that any inquiry which the Director decides to have made pursuant to section 25 and which is carried out by a Special Inquiry Officer pursuant to section 26 is also limited to the cases of persons who are not Canadian citizens.
The applicant was born in Canada. This fact is undisputed. Based on this fact counsel for the applicant argues that the Special Inquiry Officer has no jurisdiction to determine whether the appli cant is a Canadian citizen, alleging that an inquiry on that particular issue in the case of a person born in Canada can only be carried out pursuant to a direction of the Secretary of State of Canada under the provisions of sections 18 and 19 of the Canadian Citizenship Act.
The Special Inquiry Officer has before him evidence which might well establish that the appli cant has abandoned his Canadian citizenship and become a citizen of the United States.
Unless there is some statutory impediment to the contrary, it is axiomatic that any person, com mission, board or tribunal charged with an inquiry and whose jurisdiction to make that inquiry is dependant upon the existence of a specific legal status, condition or relationship which in turn depends upon the existence of certain facts, has not only the jurisdiction but has the legal duty to inquire into the facts which are susceptible of determining whether or not the required status, condition or relationship exists.
Counsel for the applicant argues, on the other hand, that this principle does not apply to the present case because Parliament has enacted spe cial statutory provisions, namely the above-men tioned sections 18 and 19 of the Canadian Citizen ship Act, which require the question of whether Canadian citizenship has been lost or not, to be determined solely by the Secretary of State pursu ant to the above-mentioned sections of the Canadian Citizenship Act.
The relevant portions of these sections read as follows:
18. (1) The Governor in Council may, in his discretion, order that any person shall cease to be a Canadian citizen if, upon a report from the Minister, he is satisfied that such person has
(b) when not under a disability,
(ii) taken or made an oath, affirmation or other declara tion of allegiance to a foreign country, or
(iii) made a declaration renouncing his Canadian citizenship.
(2) The Minister before making a report under this section shall cause notice to be given or sent to the latest known address of the person in respect of whom the report is to be made, giving him an opportunity of claiming that the case be referred for such inquiry as is hereinafter specified and if that person so claims in accordance with the notice, the Minister shall refer the case for inquiry accordingly.
(5) Where the Governor in Council, under this section, directs that any person cease to be a Canadian citizen, the order has effect from such time as the Governor in Council may direct and thereupon that person ceases to be a Canadian citizen.
19. (1) Where in the opinion of the Minister a doubt exists as to whether a person has ceased to be a Canadian citizen, the Minister may refer the question to the commission or court referred to in subsection 18(3) for a ruling and the decision of the commission or the court, as the case may be, is final.
Sections 15(1) and 16 of the Canadian Citizen ship Act contain the substantive law regarding loss of citizenship which might relate to the case at bar. They read as follows:
15. (1) A Canadian citizen who, when outside of Canada and not under a disability, by any voluntary and formal act other than marriage, acquires the nationality or citizenship of a country other than Canada, thereupon ceases to be a Canadian citizen.
16. Where a natural-born Canadian citizen, at his birth or during his minority, or any Canadian citizen on marriage, became or becomes under the law of any other country a national or citizen of that country, if, after attaining the full age of twenty-one years, or after the marriage, he makes, while not under disability, and still such a national or citizen, a declaration renouncing his Canadian citizenship, he thereupon ceases to be a Canadian citizen. R.S., c. 33, s. 16.
It seems abundantly clear to me that section 18 is a section which grants to the Secretary of State the power to formally declare that a person who was at one time a Canadian citizen has ceased to
be one, should the Secretary of State on his own initiative and in his discretion wish to issue such an order. Since any decision to exercise this power is discretionary, and since it leads to serious conse quences, the conditions under which it may be exercised are carefully defined in section 18 and, should the Secretary of State be in doubt as to the question, section 19 (1) authorizes him to refer it to a commission or to a court as provided for in section 18(3).
There is absolutely nothing in section 18 which provides that in order for a Canadian citizen to lose his citizenship the Secretary of State must declare that he has lost it. If such were the case, the absurd result would follow that a person who has formally renounced his citizenship and has sworn allegiance to another country and who might even have become a belligerent against Canada would nevertheless remain a Canadian citizen at the sole discretion of the Secretary of State and until the order was issued this person would be entitled as of right to benefit from all the privileges and rights of a Canadian citizen. Fur thermore, since this power is discretionary, to accede to the argument of counsel for the appli cant would involve holding that no court or tri bunal has the jurisdiction to determine that issue notwithstanding that some of the rights, privileges or duties of a Canadian citizen might be under consideration by that Court or tribunal and be vital to its decision and that it would have to rely on the discretion, initiative and goodwill of the Secretary of State who alone would have the juris diction of deciding whether, under the circum stances he wished to determine the matter. Fur thermore, for any person who might be interested for any reason in the determination of this issue there would be no forum where or procedure by which, as of right, he could require it to be deter mined. He also would be obliged to rely entirely on the discretion and goodwill of the Secretary of State. This might conceivably lead to the gravest form of injustice, completely beyond the control of the Courts, as the exercise of a ministerial discre tion under section 18 not to issue an order would not be reviewable by any Court: it would constitute the exercise of a discretion by a Minister of the Crown pursuant to an enactment of Parliament granting him that discretion and therefore an exer cise of the executive power of government. Refer
to: Calgary Power Ltd. v. Copithorne [1959] S.C.R. 24; Bawtinheimer v. Niagara Falls Bridge Commission [1950] 1 D.L.R. 33; National Capi tal Commission v. Lapointe [1972] F.C. 568, and The King v. City of Toronto [ 1946] Ex.C.R. 424.
For the above reasons, and in the absence of any specific declaration to that effect in section 18 of the Canadian Citizenship Act, I cannot come to the conclusion, as invited to do so by counsel for the applicant, that Parliament intended to subordi nate in every respect the law contained in sections 15 and 16 to the special provisions of section 18 and thereby grant to the Secretary of State the sole and exclusive jurisdiction of determining whether at law a person who was at any time a Canadian citizen has ceased to be one. Even if it were held that an order or declaration made by the Secretary of State pertaining to loss of Canadian citizenship is in fact and at law binding for all purposes on all other Courts, tribunals, boards or commissions, this would not mean that, regardless of the purpose for which the issue must be deter mined, he remains the sole authority with the jurisdiction to determine it if it has not yet been determined.
The motion is dismissed with costs.
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