A-661-96
The Minister of Citizenship and Immigration (Appellant) (Respondent)
v.
Ernst Zündel (Respondent) (Applicant)
Indexed as: Zündelv. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Stone, Desjardins and McDonald JJ.A."Vancouver, October 2; Ottawa, November 27, 1997.
Administrative law — Judicial review — Prohibition — Appeal from order prohibiting SIRC from conducting proceedings under Citizenship Act, s. 19 — When respondent applying for citizenship, Minister reporting to SIRC pursuant to Citizenship Act, s. 19(2) outlining reasonable grounds to believe respondent would engage in activity threatening security of Canada, based on information, advice provided by CSIS — SIRC involved in report on which Minister relying — Standard of impartiality required varying with nature of board's functions — SIRC, dealing with Citizenship Act, s. 19 report primarily investigative — Not functioning as court of law — Must balance applicant's interest with that of security of Canada, possibly entailing policy considerations — As merely reporting to Governor in Council, SIRC not decision-maker — Standard allowing agency to perform role conferred by Parliament closer to —open mind— than —informed bystander—.
Security Intelligence — Appeal from order prohibiting SIRC from conducting proceedings under Citizenship Act, s. 19 — SIRC having dual roles: (1) review performance of CSIS under CSIS Act, s. 38; (2) investigate when report made to it pursuant to Citizenship Act, s. 19(2) — SIRC's functions under s. 19 primarily investigative — May receive any evidence, sworn or not; use information acquired earlier of which applicant may be unaware — Required to balance applicant's interest with that of security of Canada, fluid concept involving policy considerations — Not decision-maker as reports to Governor in Council — Parliament must have accepted that SIRC, while acting as investigative agency pursuant to s. 38, could acquire knowledge concerning matters subsequently required to deal with under s. 19 — Mere exercise of statutory duties not giving rise to allegation of reasonable apprehension of bias.
Citizenship and Immigration — Status in Canada — Citizens — Respondent applying for Canadian citizenship — Minister reporting pursuant to Citizenship Act, s. 19(2) to SIRC outlining reasonable grounds to believe respondent would engage in activity constituting threat to security of Canada, based on information, advice provided by CSIS — SIRC commencing investigation — SIRC involved in report on which Minister relying to report to SIRC — While SIRC's functions having some adjudicative characteristics, important policy considerations coming into play — Applying standard of impartiality closer to —open mind— than —informed bystander—, SIRC's statements in report focusing primarily on CSIS's activities not preventing conduct of another investigation focused on respondent in light of information supplied by him in citizenship proceeding.
This was an appeal from an order prohibiting the Security Intelligence Review Committee (SIRC) from conducting proceedings under Citizenship Act, section 19 with respect to the respondent's application for citizenship. In 1994 the SIRC investigated allegations that CSIS had improperly investigated the affairs of several white supremacist organizations. Its findings were summarized in the Heritage Front Report, in which the respondent was labelled a Holocaust denier, a hate literature publisher, a member of the radical right, and part of the Heritage Front and Nationalist Party of Canada. The respondent had applied for Canadian citizenship in 1993. The Minister, pursuant to Citizenship Act, subsection 19(2), made a report to SIRC outlining that he had reasonable grounds to believe that the respondent would engage in activity that would constitute a threat to the security of Canada, based on information and advice provided to him by CSIS. SIRC advised the respondent that an investigation would be conducted. After the hearing had begun, the respondent applied for judicial review on the ground of a reasonable apprehension of bias as a result of SIRC's involvement in the Heritage Front Report, upon which the Minister had relied in order to issue his report to SIRC. Heald D.J. held that SIRC was performing an adjudicative role and was required to meet the standard of impartiality of the "informed bystander" characteristic of quasi-judicial tribunals. He concluded that the facts disclosed a reasonable apprehension of bias, and found that SIRC had prejudged the issues.
The issue was the standard to be applied in judging the allegation of bias against the SIRC.
Held, the appeal should be allowed.
SIRC must perform various reviews itemized in CSIS Act, paragraph 38(a), may conduct reviews to ensure that the activities of CSIS are carried out in accordance with the Act, regulations and directions issued by the Minister, and on request, may review any matter that relates to the performance of its duties and functions. It also conducts investigations when a report is made to it pursuant to Citizenship Act, section 19 that there are reasonable grounds to believe that a person will engage in activities that constitute a threat to the security of Canada. The SIRC then makes a report to the Governor in Council, who may declare that there are reasons to believe that the person will engage in an activity that threatens the security of Canada, in which case the applicant is precluded from being granted Canadian citizenship.
The impartiality required of a board varies with its nature and functions. Boards which are primarily adjudicative in their functions are expected to comply with the standard applicable to courts, which is the standard of the informed bystander. Boards with primarily legislative functions, generally those with popularly elected members such as those dealing with planning and development whose members are municipal councillors, answer to the test of the "open mind". In order to disqualify such a member, the challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representation to the contrary would be futile. Administrative boards that deal with matters of policy are closely comparable to boards composed of municipal councillors. For those boards a strict application of a reasonable apprehension of bias as a test might undermine the very role which was entrusted to them by the legislature.
When the SIRC deals with a Citizenship Act section 19 report, it does not function as a court of law. It may accept and receive any evidence or information, sworn or not, as it sees fit. It may use information of which the applicant is not aware and which the board has acquired in earlier circumstances. It must, in the end, balance the applicant's interest with that of the security of Canada, a fluid concept which might entail policy considerations. It writes a report to the Governor in Council. SIRC is not, therefore, the decision-maker, although the report probably carries considerable weight as it is the only report statutorily required to be considered by the Governor in Council. Given the nature of the dispute and the overall context of its operation, SIRC's functions are not primarily adjudicative. While they have some adjudicative characteristics, important policy considerations come into play. These functions lie somewhere between the purely adjudicative functions and the legislative functions. The correct test, with respect to such a board is not the informed bystander's test, but a flexible test which will allow the agency to carry on the role conferred on it by Parliament.
The overlap in SIRC's review and adjudicative functions were expressly created by the CSIS Act. It must be assumed that Parliament had foreseen this overlap of functions, and nevertheless decided that such was the mandate it was giving SIRC. It must have accepted that SIRC, while acting as an investigative agency pursuant to CSIS Act, section 38 could acquire knowledge concerning matters with which it might subsequently have to deal under Citizenship Act, section 19 where both evidence and policy were expected to be applied. So long as the SIRC does not act outside of its statutory authority, the mere fact of exercising those statutory duties does not give rise to an allegation of reasonable apprehension of bias.
When considered under a test less rigorous than the "informed bystander" test, which lies somewhere closer to the "open mind" test, the statements made by SIRC about the respondent in the Heritage Front Report, which focused primarily on CSIS's activities, will not prevent the conduct of another investigation focused on the respondent in light of information furnished by the respondent himself in a citizenship proceeding. The protection of the Canadian public is an objective which cannot be waived or dismissed, even on an application for citizenship. It is the very essence of a section 19 inquiry.
statutes and regulations judicially considered
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2, 12, 34, 38(a),(b),(c), 39(2),(3), 40, 42, 43, 44, 48, 49, 50, 51, 52, 53, 54.
Citizenship Act, R.S.C., 1985, c. C-29, ss. 19 (as am. by S.C. 1997, c. 22, ss. 1) 19.1 (as enacted idem, s. 2), 20(1) (as am. idem, s. 3).
Federal Court Rules, C.R.C., c. 663, R. 1611 (as enacted by SOR/92-43, s. 19).
cases judicially considered
applied:
Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; (1989), 57 D.L.R. (4th) 458; [1989] 3 W.W.R. 456; 93 N.R. 1; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1; E.A. Manning Ltd. v. Ontario Securities Commission (1995), 23 O.R. (3d) 257; (1995), 125 D.L.R. (4th) 305; 32 Admin. L.R. (2d) 1; 7 C.C.L.S. 125; 80 O.A.C. 321; 18 O.S.C.B. 2419.
referred to:
MacBain v. Lederman, [1985] 1 F.C. 856; (1985), 22 D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R. D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117 (C.A.).
APPEAL from an order prohibiting the Security Intelligence Review Committee from conducting proceedings under Citizenship Act, section 19 with respect to the respondent's application for citizenship (Zündel v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 215; (1996), 138 D.L.R. (4th) 12; 40 Admin. L.R. (2d) 171; 117 F.T.R. 129; 36 Imm. L.R. (2d) 119 (T.D.)). Appeal allowed.
counsel:
Donald J. Rennie for appellant (respondent).
Douglas H. Christie for respondent (appellant).
Gordon K. Cameron for intervenor, Security Intelligence Review Committee.
solicitors:
Deputy Attorney General of Canada for appellant (respondent).
Douglas H. Christie, Victoria, for respondent (appellant).
Blake, Cassels & Graydon, Ottawa, for intervenor, Security Intelligence Review Committee.
The following are the reasons for judgment rendered in English by
Desjardins J.A.: This is an appeal from an order of the Trial Division [[1996] 3 F.C. 215] prohibiting the Security Intelligence Review Committee (SIRC), established under the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, section 34, (the CSIS Act), from conducting proceedings under section 19 of the Citizenship Act, R.S.C., 1985, c. C-29, with regard to the respondent's application for citizenship. At issue is whether SIRC has lost jurisdiction in the citizenship proceedings by having demonstrated bias vis-à-vis the respondent following a report it made earlier on the activities of the Canadian Security Intelligence Service (CSIS). The report, made pursuant to paragraph 38(b) and section 40 of the CSIS Act, makes reference to the activities of the respondent.
The facts
The CSIS Act provides inter alia for the establishment of two main national institutions. The first, CSIS, is mandated, under section 12 of the Act, to collect, analyse and retain information and intelligence respecting activities that may, on reasonable grounds, be suspected of constituting threats to the security of Canada and to report to and advise the Government of Canada of such matters. The second, SIRC, is a committee consisting of a Chairman, and not less than two and not more than four other members, appointed by the Governor in Council from members of the Queen's Privy Council, who are not members of the Senate or the House of Commons, after consultation by the Prime Minister with the Leader of the Opposition in the House of Commons and the leader in that House of each party having at least twelve members. It has, under section 38 of the Act, important functions of review of the performance of CSIS and of investigations in relation to matters listed in that section.
On August 14, 1994, following an article published in the Toronto Sun, SIRC decided to conduct an investigation into allegations that CSIS had, amongst others, improperly investigated the affairs of several white supremacist organizations (A.B., Vol. I, at pages 7 and 46). This investigation received considerable media coverage. The results were summarized in a report widely known as the "Heritage Front Report", which contained a considerable number of references to the respondent, labelling him as a Holocaust denier, a hate literature publisher, a member of the radical right and part of the Heritage Front and Nationalist Party of Canada.
The respondent was born in Germany and entered Canada as a permanent resident in 1958. He applied for Canadian citizenship on October 24, 1993. The appellant Minister informed him on August 5, 1995, that, pursuant to subsection 19(2) of the Citizenship Act, he had made a report to SIRC outlining that he had reasonable grounds to believe that the respondent would engage in activity that constitutes a threat to the security of Canada. The Minister informed the respondent that this determination was based on information and advice provided to him by CSIS. The respondent was also notified that his application for citizenship would be suspended until SIRC had completed a review of his case pursuant to section 19 of the Act.
In October 1995, SIRC advised the respondent that an investigation would be conducted. Enclosed was a statement of circumstances, a two-and-one-half-page document on which the initial report from the Minister had been based. The statement of circumstances contained a schedule listing 52 documents and 11 videotapes and cassettes upon which CSIS relied in order to establish its allegations that the respondent might constitute a threat to the security of Canada. One of those documents was the Heritage Front Report with which all the members of SIRC had been involved (A.B., Vol. I, at page 46).
The investigation was presided over by Mr. Jacques Courtois, P.C.Q.C.1 who sat as a member of SIRC when the Heritage Front Report was written. SIRC undertook interviews and examined documents in the possession of CSIS and others. A hearing was held at which the respondent, CSIS, and the Minister were given an opportunity to make representations and present evidence personally or by counsel. The hearing began on March 25, 1996, but was adjourned after several weeks, on procedural grounds. On February 26, 1996, the respondent requested an adjournment of the hearing so he could file an application for judicial review on the grounds of a reasonable apprehension of bias on the part of SIRC as a result of its involvement in the Heritage Front Report upon which the Minister relied in order to issue its report to SIRC. The request for an adjournment was refused.2 The respondent's application for judicial review was heard before Heald D.J. on an expedited basis. An order of prohibition was issued.
Decision under appeal3
Heald D.J. held that, given the nature of the proceedings and the functions performed by SIRC in investigating and reporting to the Minister of Citizenship on whether the respondent was a threat to the security of Canada, SIRC was performing an adjudicative role and was required to meet a standard of impartiality required by the "informed bystander test" characteristic of quasi-judicial tribunals. He noted that while SIRC only made recommendations to the Governor in Council, it was SIRC which conducted a hearing where the witnesses were assessed and the evidence weighed. Its report was the only one that the Governor in Council was statutorily required to take into consideration before deciding whether to make a declaration pursuant to subsection 20(1) of the Citizenship Act . Since there was no opportunity for the respondent to make submissions directly to the Governor in Council, the hearings before SIRC were his sole opportunity to challenge the allegations.
Having decided upon the applicable test, the Motions Judge went on to decide whether the facts of the case disclosed a reasonable apprehension of bias on the part of SIRC. He concluded that they did. He found, moreover, that SIRC had prejudged the issues before it ([1996] 3 F.C. 215, at pages 248-249):
In my view, the above statements of SIRC in the Heritage Front Report are more than sufficient to cause an informed person, viewing the matter realistically and practically, and having thought the matter through to conclude there is a reasonable apprehension of bias of SIRC toward Zündel. Accordingly, I am satisfied that the informed bystander test for bias has been met.
This conclusion is undoubtedly sufficient to dispose of this matter. However, I think it necessary, in the unusual circumstances of this case, to make some additional observations. In my view, some of SIRC's statements supra, go beyond the informed bystander test. In reality, they demonstrate a pre-judgment of issues before SIRC in the impugned proceedings. Accordingly, in order to refute the allegations against him, Zündel would have to convince SIRC that the views SIRC previously professed are unfounded. The foreword to the Heritage Front Report describes the importance of the report in the following paragraph excerpted therefrom:
What sets this report apart from all the other reports we have sent to the Solicitor General is the fact that most of it, perhaps all of it, will be made public. This will occur because the allegations against CSIS were so serious that the Security Intelligence `system' established by Parliament in 1984 was in danger of losing the public's trust. Readers of the "Heritage Front Affair" will be able to judge for themselves the effectiveness of the accountability procedures put in place by the CSIS Act , and the Review Committee's role in that structure.
The Executive Director attempted to alleviate Zündel's concerns of bias by advising him that SIRC is not bound to take into consideration any position previously taken by SIRC. However, in my view, taking into consideration the context in which the Heritage Front Report was written, a reasonable apprehension of bias is created by putting Zündel in the position of having to persuade the same committee that made the statements and findings in the Heritage Front Report that they are in fact unfounded.
He refused to apply the decision of the Supreme Court of Canada in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, as he felt the matter was more akin to MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.).
Issue
The key issue in this appeal is the determination of the proper standard to be applied in order to judge the allegation of bias against SIRC considering the dual mandate given to this agency under the CSIS Act and the Citizenship Act.
Position of the parties and of the tribunal
The appellant submits that the Trial Judge held SIRC to the wrong standard of impartiality. Bias, he says, is an attitude of mind to be found in an individual not in a tribunal as a whole. But, if bias were to be found on the part of the agency as a whole, the appellant submits that it arises out of the necessary and proper application and discharge of SIRC's statutory mandate.
The respondent agrees with the Trial Judge's finding that the function of SIRC was adjudicative and, therefore, attracted the standard of impartiality required by the informed bystander test. Because of the report in which, he says, SIRC prejudged the respondent, SIRC now has a conflict of interest in upholding the credibility of its report, on one hand, and in acting impartially, on the other hand, in the section 19 hearing against the respondent.
SIRC, which was granted intervenor status under Rule 1611 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)], took no part in the fundamental issues. It has explained, however, that SIRC was established by the CSIS Act, in 1984, following the report of the Macdonald Commission. The report of the Macdonald Commission had recommended two separate entities: a general review agency and an agency to receive complaints. The concern with the proposal was that the investigative agency would lack the background knowledge and expertise acquired by a review agency and necessary to put the complaint and investigations into proper context. Accordingly, the CSIS Act established SIRC as an agency with roles as both a review agency and an investigative one (affidavit of Sylvia MacKenzie, A.B., Vol. II, 331, at page 332, paragraph 2).
Analysis
It is important to understand at the outset the roles and functions of SIRC under the CSIS Act and under the Citizenship Act.
The functions of SIRC, as a review agency, are set out in paragraphs 38(a) and (b) of the CSIS Act. Paragraph 38(a) lists the various regular itemized reviews that must be performed by SIRC. Paragraph 38(b) provides SIRC with the authority to conduct reviews pursuant to section 40, namely for the purpose of ensuring that the activities of CSIS are carried out in accordance with the Act, the regulations and directions issued by the Minister. Section 54 of the Act provides that SIRC may, on request by the Minister, or at any other time, furnish the Minister with a special report concerning any matter that relates to the performance of its duties and functions.
SIRC's mandate as an investigative agency is to be found in paragraph 38(c) of the CSIS Act. Pursuant to subparagraph 38(c)(ii), SIRC conducts investigations when a report is made to it pursuant to section 19 of the Citizenship Act, for example, where there are reasonable grounds to believe that a person will engage in activities that constitute a threat to the security of Canada. SIRC is then mandated to conduct an investigation in accordance with the CSIS Act. In order to do so, subsections 39(2) and (3) and sections 43, 44 and 48 to 51 of the CSIS Act, with such modifications as required, apply to the investigation as if it were conducted in relation to a complaint made pursuant to section 42 of the Act. SIRC may, for instance, examine documents in the possession of CSIS and others (subsection 39(2)), other than information which is a confidence of the Queen's Privy Council (subsection 39(3)). The investigation is to be conducted in private (subsection 48(1)). Pursuant to subsection 48(2), the applicant for citizenship, the Canadian Security Intelligence Service and the Minister must be allowed to make representations. However, no one is entitled as of right to be present during, to have access to, or to comment on representations made to the Review Committee by any other person. The agency can, under section 50, summon and enforce the appearance of persons and receive evidence whether on oath or by affidavit, or otherwise as it sees fit, whether or not the evidence or information would be admissible in a court of law. On completion of its investigation, SIRC makes a report to the Governor in Council and provides the applicant with the conclusions of the report (subsection 19(6) of the Citizenship Act). The Governor in Council may then declare that there are reasonable grounds to believe that the person, with respect to whom the report was made, will engage in an activity that constitutes a threat to the security of Canada, in which case the applicant is precluded from being granted Canadian citizenship. Such a declaration ceases to have effect two years after the day on which it is made (subsection 20(3) of the Citizenship Act).
Was the Motions Judge correct in applying the informed bystander test so as to determine that SIRC had, by its action, raised a reasonable apprehension of bias?
The Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, at page 636, and in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, at page 952, has recognized that the principle of impartiality is flexible. The impartiality required of a board varies with its nature and functions.
Boards which are primarily adjudicative in their functions are expected to comply with the standard applicable to courts, which is the standard of the informed bystander. Boards with primarily legislative functions, generally those with popularly elected members such as those dealing with planning and development whose members are municipal councillors answer to the test of the "open mind". In order to disqualify such a member, the challenging party must establish that there has been a pre-judgment of the matter to such an extent that any representation to the contrary would be futile. Administrative boards that deal with matters of policy are closely comparable to boards composed of municipal councillors. "For those boards", said Cory J. in the Newfoundland Telephone case, "a strict application of a reasonable apprehension of bias as a test might undermine the very role which has been entrusted to them by the legislature" ([1992] 1 S.C.R. 623, at pages 638-639). He continued (at page 639):
Further, a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing. This does not of course mean that there are no limits to the conduct of board members. It is simply a confirmation of the principle that the courts must take a flexible approach to the problem so that the standard which is applied varies with the role and function of the Board which is being considered. In the end, however, commissioners must base their decision on the evidence which is before them. Although they may draw upon their relevant expertise and their background of knowledge and understanding, this must be applied to the evidence which has been adduced before the board.
SIRC, when it deals with a section 19 report under the Citizenship Act, is neither acting in a primarily adjudicative function nor in a purely legislative or policy formation function. SIRC's functions, as described earlier, can only be primarily investigative. It does not function as a court of law. It may accept and receive any evidence or information, sworn or not, as it sees fit (see paragraph 50(c) of the CSIS Act). It may use information of which the applicant is not aware and which the board has acquired in earlier circumstances. It must, in the end, balance the applicant's interest with that of the security of Canada, a fluid concept which might entail policy considerations (see the defined words "threats to the security of Canada", section 2, CSIS Act). Legally, what it writes is a report to the Governor in Council. SIRC is not, therefore, the decision-maker, although the Motions Judge was certainly correct in noticing the weight the report probably carries considering it is the only report statutorily required to be considered by the Governor in Council (subsection 20(1) of the Citizenship Act ). Given, however, the nature of the dispute and the overall context of its operation, SIRC's functions are not primarily adjudicative. While they have some adjudicative characteristics, important policy considerations come into play. These functions, as a whole, lie somewhere between the two ends of the scale, namely the purely adjudicative functions and the legislative functions. The correct test, with regard to a board which stands somewhere in the middle of the spectrum, cannot be the informed bystander's test. It must be a less rigorous one. To paraphrase Cory J. in the Newfoundland Telephone case, the test must be flexible so as to allow this agency to carry on the role with which it has been entrusted by Parliament.
What preoccupied the Motions Judge was an attitudinal bias on the part of SIRC which, in the view of an informed bystander, had already pronounced and prejudged the issue with regard to the respondent's case as a result of its findings in the Heritage Front Report.
The overlap in SIRC's review and adjudicative functions have been expressly created by the CSIS Act. Given the present legislation, it must be assumed that Parliament has foreseen this overlap of functions and, nevertheless, has decided that such was the mandate it was giving SIRC. It must have accepted that SIRC, while acting as an investigative agency pursuant to section 38 of the Act, could acquire knowledge with respect to matters which it could subsequently have to deal with under section 19 of the Citizenship Act where both evidence and policy are expected to be applied.
The issue of a board exercising a dual mandate was considered by the Supreme Court of Canada in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301. One of the issues in that case was whether a reasonable apprehension of bias existed, given the fact that the Chairman of the Alberta Securities Commission had performed the dual role of investigating the affairs of an individual and was later about to adjudicate a complaint that had been filed against that same individual. L'Heureux-Dubé J., for the Court, stated in [1989] 1 S.C.R. 301, at pages 309-310:
The appellant contends that a reasonable apprehension of bias arose from the fact that the Chairman, who had received the investigative report, was also designated to sit on the panel at the hearing of the matter. He objects to the Chairman's participation at both the investigatory and adjudicatory levels.
The maxim nemo judex in causa sua debet esse underlies the doctrine of "reasonable apprehension of bias". It translates into the principle that no one ought to be a judge in his own cause. In this case, it is contended that the Chairman, in acting as both investigator and adjudicator in the same case, created a reasonable apprehension of bias. As a general principle, this is not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner.
As with most principles, there are exceptions. One exception to the "nemo judex" principle is where the overlap of functions which occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue. A case in point relied on by the respondents, Re W. D. Latimer Co. and Attorney-General for Ontario (1973), 2 O.R. (2d) 391, affirmed sub nom. Re W. D. Latimer Co. and Bray (1974), 6 O.R. (2d) 129, addresses this particular issue with respect to the activities of a securities commission. In that case, as in this one, members of the panel assigned to hear proceedings had also been involved in the investigatory process. Dubin J.A. for the Court of Appeal found that the structure of the Act itself, whereby commissioners could be involved in both the investigatory and adjudicatory functions did not, by itself, give rise to a reasonable apprehension of bias. He wrote at pp. 140-41:
Where by statute the tribunal is authorized to perform tripartite functions, disqualification must be founded upon some act of the tribunal going beyond the performance of the duties imposed upon it by the enactment pursuant to which the proceedings are conducted. Mere advance information as to the nature of the complaint and the grounds for it are not sufficient to disqualify the tribunal from completing its task.
In order to disqualify the Commission from hearing the matter in the present case, some act of the Commission going beyond its statutory duties must be found.
Administrative tribunals are created for a variety of reasons and to respond to a variety of needs. In establishing such tribunals, the legislator is free to choose the structure of the administrative body. The legislator will determine, among other things, its composition and the particular degrees of formality required in its operation. In some cases, the legislator will determine that it is desirable, in achieving the ends of the statute, to allow for an overlap of functions which in normal judicial proceedings would be kept separate. In assessing the activities of administrative tribunals, the courts must be sensitive to the nature of the body created by the legislator. If a certain degree of overlapping of functions is authorized by statute, then, to the extent that it is authorized, it will not generally be subject to the doctrine of "reasonable apprehension of bias" per se . [Emphasis added.]
The same was said by the Ontario Court of Appeal in E.A. Manning Ltd. v. Ontario Securities Commission (1995), 23 O.R. (3d) 257, at page 264:
By statute, the Commission is given many independent responsibilities and duties, and, in considering issues of bias and reasonable apprehension of bias, regard must be had to the statutory framework within which the Commission functions.
Within that statutory framework, the Commission is, in disciplinary matters, the investigator, the prosecutor, and the judge. As a general principle, in the absence of statutory authority, this overlap would be held to be contrary to the principles of fairness. However, where such functions are authorized by statute, the overlapping of these functions, in itself, does not give rise to a reasonable apprehension of bias. [Emphasis added.]
The terms "generally" and "in itself" are to be noted.
So long as SIRC does not act outside of its statutory authority, the mere fact of exercising those statutory duties should not give rise to an allegation of reasonable apprehension of bias. In the case at bar, it was never argued that, in the course of its proceedings, SIRC went beyond what it was authorized to do under the Act. Therefore, unless some consideration outside of bias affects the legality of the decision, no disqualification arises.4
The Motions Judge refused to apply Brosseau for two reasons. Firstly, he held that it was not the legislative scheme created by the Citizenship Act and CSIS Act by itself which created the reasonable apprehension of bias, but the prior statements and findings of SIRC.
Secondly, he stated that the nature of a securities commission was very different from a board such as SIRC. He explained that securities commissions deal with the trade of securities while SIRC, pursuant to the Citizenship Act, performs a paramount role in the determination of a citizenship application.
With respect, I do not agree that the distinction the Motions Judge drew between the two situations necessarily lead to the conclusion he reached. SIRC's findings were made in the course of carrying out a legislative mandate. Because the Motions Judge adopted the test of the informed bystander, he was prompt to conclude that the credibility of Zündel had been decided once and for all. But, when considered under a less rigorous test, a test which lies somewhere closer to the "open mind" test, the statements made by SIRC about the respondent in the Heritage Front Report, which focused primarily on CSIS's activities, will not prevent the conduct of another investigation, this one focused on the respondent in light of information brought by the respondent himself in a citizenship proceeding. With respect to the second point, while the nature of SIRC's functions are significantly different from those of a securities commission, in the sense that these two boards deal with completely different matters, their ultimate role is the same, namely the protection of the Canadian public. This objective cannot be waived or dismissed, even on an application for citizenship. It is the very essence of a section 19 inquiry. The differences stated by the Motions Judge are not sufficient to distinguish Brosseau from the facts in the case at bar.
Considering SIRC's duality of functions, which must be understood as permitting the exercise of both powers, and considering that this bi-functional structure does not in itself give rise to a reasonable appearance of bias, I see no reason why SIRC, which acted within its statutory framework, should be prohibited from pursuing an investigation of the respondent under section 19 of the Citizenship Act, notwithstanding SIRC's earlier statements in the Heritage Front Report.
I would allow this appeal and would set aside the order of the Motions Judge.
The appellant is not asking for costs.
Stone J.A.: I agree.
McDonald J.A.: I agree.
1 Mr. Courtois passed away subsequent to the hearing before the Motions Judge.
2 After having refused the adjournment, the letter from the Executive Director of the Committee stated (A.B., Vol. II, at p. 367):
It should be noted that the Committee will make its report to the Governor in Council in this matter solely on the basis of its findings in this particular investigation. The Committee would like to emphasize that it will not be bound to take into consideration any position previously taken by the Committee.
3 ;Zündel v. Canada (Minister of Citizenship and Immigration), [1996] 3 F.C. 215 (T.D.).
4 It may be noted that Parliament has amended the Citizenship Act, S.C. 1997, c. 22, by provisions which came into force on May 20, 1997, and which read:
19. . . .
(4.1) If the Review Committee is of the opinion that it cannot perform its duties described in subsections (4), (5) and (6), it must cease its investigation and give notice to the Minister and the person referred to in subsection (2).
. . .
19.1 (1) After consultation by the Prime Minister of Canada with the Leader of the Opposition in the House of Commons and the leader in the House of Commons of each party having at least twelve members in that House, the Governor in Council may appoint a retired judge of a superior court for a term of three to five years to perform the duties of the Review Committee described in subsections 19(4), (5) and (6).