". . . if the Minister is of the opinion that there are reasonable
ground to believe that an applicant for citizenship (the "applicant")
will engage in activity that constitutes a threat to the security of Canada,
then the Minister may make a report to this effect to SIRC, pursuant to
subsection 19(2) of the Citizenship Act. Within ten (10) days of making
the said report, the Minister shall notify the applicant of the report.
The Minister is also required to advise the applicant that following an
investigation by SIRC, a declaration by the Governor in Council pursuant
to section 20 of the Citizenship Act may follow.
SIRC is then required to conduct an investigation, pursuant to subsection
19(4) of the Citizenship Act, in accordance with several enumerated provisions
of the Canadian Security Intelligence Service Act (the "CSIS Act").
As soon as practicable, SIRC shall send the applicant a Statement of Circumstances
that sets out the circumstances that gave rise to the Minister's report.
Following its investigation, SIRC shall make a report to the Governor in
Council and provide the applicant with the conclusion of the report, pursuant
to subsection 19(6) of the Citizenship Act.
After considering SIRC's report, the Governor in Council may declare, pursuant
to subsection 20(1) of the Citizenship Act, that there are reasonable grounds
to believe that the applicant will engage in activity that constitutes
a threat to the security of Canada. The effect of such a declaration is
the preclude the applicant from being granted citizenship. I would observe
that, pursuant to subsection 20(2) and 20(5) supra, a declaration by the
Governor in Council is absolutely determinative of the citizenship application.
The applicant must then wait for a two year period to expire, following
which the declaration ceases to have effect, and he/she may then submit
another application for citizenship. Accordingly, SIRC's Counsel conceded
at the hearing that this application for judicial review, wherein Zündel
seeks an order of prohibition, is the only avenue open to Zündel to
challenge the proceedings arising under section 19 of the Citizenship Act.
. . .
Zündel was born on April 24, 1939, in Calmbach, Germany. He entered
Canada as a permanent resident on September 2, 1958. On October 24, 1993,
Zündel applied for Canadian citizenship. By letter dated August 5,
1995, he was notified by the Minister that the Minister had made a report
(the "Minister's Report") to SIRC, pursuant to subsection 19(2)
of the Citizenship Act, to the effect that there were reasonable grounds
to believe that Zündel would engage in activity that constitutes a
threat to the security of Canada. The Minister further informed Zündel
that this determination had been made on the basis of information and advice
provided by the Canadian Security Intelligence Service ("CSIS").
Zündel was advised that the Registrar of Canadian Citizenship would
suspend processing Zündel's application for Canadian citizenship until
SIRC had completed the review required under Section 19 of the Citizenship
Act.
By a letter dated August 31, 1995, the Executive Director of SIRC, Maurice
Archdeacon (the "Executive Director"), informed Zündel that
SIRC had received the Minister's Report concerning his application for
citizenship. He further advised Zündel that, in accordance with subsection
19(5) of the Citizenship Act, SIRC would send Zündel a statement summarizing
the information available to it in order to permit him to be as fully informed
as possible of the circumstances giving rise to the Minister's Report.
. . .
2. Should the Court grant an order prohibiting SIRC from investigating
and reporting to the Governor in Council on the Minister's Report?
I would like to make it clear at the outset what the Court is being asked
to decide. This application seeks an Order to prohibit proceedings of a
federal board, namely SIRC, pursuant to section 18.1 of the Federal Court
Act. In this case, it is alleged that there is a reasonable apprehension
of bias on the part of the federal board, SIRC, thereby breaching the duty
of fairness toward Zündel, and on that basis, the SIRC proceedings
should be prohibited. In deciding the prohibition issue, the Court is without
jurisdiction to reach a conclusion with respect to the issues before SIRC
in the impugned proceedings. Accordingly, the Court's reasons therein draw
no conclusion with respect to the central issue in the SIRC proceedings,
namely whether there are reasonable grounds to believe that Zündel
will engage in activity that constitutes a threat to the security of Canada.
The issue before the Court in this application is a narrow one restricted
to the facts of this case. The Court is only being asked to decide if,
in the circumstances in this case, SIRC should be prohibited from carrying
out the proceedings mandated by section 19 of the Citizenship Act.
It is not disputed that it is the Governor in Council, and not SIRC, that
ultimately makes the decision as to whether or not there are reasonable
grounds to believe that Zündel will engage in activity that constitutes
a threat to the security of Canada. However, the role of SIRC should not
be understated. It is SIRC that conducts a hearing at which it assesses
the witnesses and weighs their evidence. It is before SIRC that the interested
parties make their submissions. Finally, it is SIRC that synthesizes all
of this information into a report. As subsection 19(6) of the Citizenship
Act requires SIRC to provide Zündel with the "conclusions of
the report", it is apparent that SIRC's report also necessarily includes
SIRC's conclusions reached in the impugned proceedings. Furthermore, this
is the only report that the Governor in Council is statutorily required
to take into consideration before deciding whether or not to make a declaration,
pursuant to subsection 20(1) of the Citizenship Act. Since there is no
provision in the legislative scheme for Zündel to make representations
directly to the Governor in Council, the hearing before SIRC is Zündel's
only opportunity to challenge the allegations against him.
To summarize, although SIRC is not the ultimate decision-maker as to whether
there are reasonable grounds to believe that Zündel will engage in
activity that constitutes a threat to the security of Canada, SIRC plays
a vital and paramount role in that determination. . . .
This is not a case where there is an elected board that functions to make
legislative decisions that are binding on the public at large . . . Nor
is it a case of an appointed board performing a watchdog role over a public
utility. . . Rather, the issue before SIRC is whether, in respect of a
specific individual who has applied for citizenship, namely Mr. Ernst Zündel,
there are reasonable grounds to believe that he will engage in activity
that constitutes a threat to the security of Canada. If the ultimate outcome
of the SIRC proceedings is a declaration by the Governor in Council to
this effect, then Zündel cannot be granted citizenship, until the
said declaration expires. The fate of Zündel's Canadian citizenship,
and all the privileges and obligations that it encompasses, is at stake.
Accordingly, in my view, the function of SIRC, in the proceedings mandated
by section 19 of the Citizenship Act, attracts the standard of impartiality
required by the informed bystander test.
ii. Application of the Informed Bystander Test for Bias
It is Zündel's submission that the views of SIRC espoused in the
Heritage Front Report give rise to a reasonable apprehension of bias of
SIRC against him. The Heritage Front Report makes reference to Zündel
in at least twenty (20) different passages. . . Although the Minister does
rely on the Heritage Front to support the allegations against Zündel,
it makes no difference, in my view, whether the Heritage Front Report is
tendered as evidence at the SIRC hearing. The fact remains that SIRC authored
the report and made the statements contained therein. . . .
The Court, in this application, does not have to decide whether SIRC's
findings in the Heritage Front Report are valid. What is important to this
application is the fact that SIRC has made those findings. The question
to be determined here is whether, because of SIRC's statements in the Heritage
Front Report, there is a reasonable apprehension of bias against Zündel
with respect to the proceedings now before SIRC, pursuant to section 19
of the Citizenship Act. . . .
As noted supra, the Heritage Front Report contains numerous references
to Zündel. In my view, the strongest statements made in regard to
Zündel are contained in the following passages:
The individuals and groups defended by this organization are generally from the radical right and include such Holocaust deniers as Ernst Zündel, Jim Keegstra and Malcolm Ross. . .
Like a "floating crap game", people gravitated from hate literature publisher Ernst Zündel to high school teacher Paul Fromm to Don Andrews and back over time.
Of greater significance that month, Wolfgang Droege and Ernst Zündel, the Holocaust denier and prolific publisher of hate literature, appeared together publicly at a Heritage Front meeting. . .
According to the Toronto Region Investigator, Holocaust denier Ernst Zündel sometimes asked for information to be collected and, after approval by Droege, the Source would appear to carry out the request. . .
That month, Wolfgang Droege and Ernst Zündel, Holocaust denier and prolific publisher of hate literature, met publicly at a Heritage Front meeting. . .
As we have stated in our report, the members of racist groups. for example, go from one organization to another for a variety of reasons and the groups form and re-form under different names. Today's Heritage Front member is tomorrow's Nationalist Party of Canada member or a follower of Ernst Zündel or, more likely in view of recent court cases in North America, an aggressive racist who claims that he belongs to no particular group in order to avoid prosecution. . .
Finally, we would like to put on the record our unshakable conviction that the Government of Canada, through all means at its disposal, should continue to ensure that it is always aware of what is going on within extreme right wing racists and Neo-Nazi groups. Canadians should never again repeat the mistakes of the past by underestimating the potential for harm embodied in hate-driven organizations. (emphasis added)
In the above passages, SIRC has labeled Zündel as a Holocaust denier,
hate literature publisher and member of the radical right. SIRC also put
Zündel in a category with members of the Heritage Front, Nationalist
Party of Canada and aggressive racists. In essence, SIRC characterized
Zündel as a radical right wing racist. SIRC then proceeded to put
on the record its unshakable conviction that the Government should continue
to ensure that it is always aware of what is going on within extreme right
wing racist groups, as Canada should never underestimate the potential
for harm embodied in hate-driven organizations.
In my view, the inescapable inference to be drawn from SIRC's characterization
of Zündel is that he is included in, or akin to, the extreme right
wing racist groups and the hate-driven organizations. In respect to those
organizations SIRC clearly warned Canada of their great potential for harmful
activity.
In addition to the passages from the Heritage Front Report supra, there
are several instances throughout the report where SIRC recounts activities
of and statements said to have been made by Zündel, including only
in footnote form Zündel's denial of the said activities and statements.
With respect to these instances, it is apparent that SIRC has accepted
information received from others over that provided by Zündel. Thus,
SIRC has had an opportunity to assess the credibility of Zündel and
has found him, in several instances, to lack credibility. . . .
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 prejudgement
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 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.
. . .
As a final note, I would add that I have only reached this conclusion after
much anxious consideration. I am not unaware that, possibly, an element
of Canadian society strongly disagrees with the alleged views and activities
of this Applicant. However, the fact remains that he has been a permanent
resident of Canada since 1958. In 1993, when he applied for Canadian citizenship
he had every right to do so. In making that application, Zündel became
subject to the provisions of the Citizenship Act. When the section 19 proceedings
were invoked against him and SIRC's investigative process began to unfold,
Zündel, as the object of the investigation, acquired the right to
procedural fairness for the reasons given supra.
As noted earlier, this decision is not about the issue in the proceedings
before SIRC, i.e. whether there are reasonable grounds for believing that
Zündel will engage in activity that constitutes a threat to the security
of Canada. This decision is about whether, in the circumstances of this
case, a reasonable apprehension of bias on the part of SIRC has been shown,
which would prevent SIRC from continuing with the section 19 proceedings
instituted against Zündel.
Accordingly, and for the foregoing reasons, I have concluded, on these
facts, that a reasonable apprehension of bias by SIRC toward Zündel
has been proven. It follows, in my view, that Zündel is entitled to
an Order prohibiting SIRC from carrying out the proceedings mandated by
section 19 of the Citizenship Act relating to his application for citizenship.
I freely acknowledge that, as a consequence of this decision, the legislative
scheme envisioned by the Citizenship Act and the CSIS Act will have been
thwarted with respect to Zündel's citizenship application. Perhaps,
in such circumstances, the question of an effective remedy can only be
addressed through creative legislative action. . . .
For the aforesaid reasons, I am granting an Order prohibiting SIRC from
carrying out the proceedings mandated by section 19 of the Citizenship
Act, with respect to Zündel's application for citizenship dated October
24, 1993.