A somewhat shortened version of Justice D.J. Heald's decision to order the SIRC hearings halted permanently

". . . 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.