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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