Noel 23-Dec-1997 Canada v Dueck Punitive and neutral triple-F rules

Marc Noël 23-Dec-1997 Canada v Dueck Punitive and neutral triple-F rules

Punitive and Neutral Triple-F Rules

The two passages reproduced just below, taken from the Canada v Dueck judgment reproduced further below, have to do with the interpretation of the alliterative "forfeiture of the fruits of fraud" rule, or more simply, the "triple-F" rule, where "rule" conveys the ideal that the fruits of fraud should indeed be forfeited. The question before the courts is whether the denaturalization and deportation of an individual guilty of a misrepresentation on an immigration application half a century ago constitutes a punishment, or constitutes no more than a forfeiture of what had been won by fraud. The court favored the latter interpretation � that denaturalization and deportation were not punitive, but constituted merely the forfeiture of the fruits of fraud:

A section 18 reference is not a criminal or quasi-criminal proceeding and in itself, involves no penal consequence. The forfeiture of the fruits of fraud is not punishment per se. The return of something obtained by fraud or deceit is a neutral event. A proceeding, the sole purpose of which is to put an individual in the situation in which he would have been if no fraud had been committed, is civil in nature; no retribution is involved. A person who has obtained Canadian citizenship by fraud knows or ought to know that his status as a Canadian citizen is precarious. The Citizenship Act imposes on citizenship applicants a duty to answer questions truthfully and provides the state with the right to obtain revocation if it can be shown that the duty was not met. Section 11 of the Charter would not apply even if citizenship revocation would necessarily result from a positive determination in this reference. Deportation is not punishment.

The forfeiture of the fruits of fraud is not punishment per se. Looked upon on its own, the return of something obtained by fraud or deceit is a purely neutral event.²³ A proceeding, the sole purpose of which is to put an individual in the situation in which he would have been if no fraud had been committed is civil in nature; no retribution is involved.

The case of R. v. Amway of Canada Ltd.²⁴ relied upon extensively by the respondent for the proposition that the forfeiture of his citizenship constitutes a penal consequence in actual fact illustrates just the opposite. Reed J. in concluding that the monetary forfeiture was punishment, pointed out that the forfeiture in question was not aimed at the payment of duties and taxes which had been evaded but called for substantial payments over and beyond the amounts properly owing. This finding of fact formed the basis of the reasoning which led her to conclude that punishment was sought. Her conclusion would necessarily have been different if all that was sought had been the payment of duties and taxes which had been the subject of the fraud. The Court of Appeal came to the same conclusion as Reed J. by reference to the same reasoning.²⁵

The decision of the Supreme Court in Vidéotron Ltée²⁶ also relied upon extensively by the respondent, is of no more assistance as the potential sanction of one year's imprisonment in that case was unequivocally punitive.

It is also important to note that in Benner v. Canada (Secretary of State), the Supreme Court referred to Canadian citizenship as a "valuable privilege".²⁷ A person who has obtained Canadian citizenship by fraud knows or ought to know that his status as a Canadian citizen is precarious. Our Citizenship Act has always imposed on citizenship applicants the duty to answer questions truthfully and, since at least 1946,²⁸ the Act has provided that where the Minister of Citizenship can establish that citizenship was obtained by fraud, it stands to be revoked. The Act therefore imposes on citizenship applicants a duty to be truthful and provides the state with the right to obtain revocation if it can be shown that the duty was not met. That is part of the social contract which binds anyone who chooses to become a Canadian citizen.

The taking back by the state of a privilege on the ground that it was originally acquired by fraud based on a remedy provided by statute for that sole purpose is not punishment. The remedy involved is no more punitive than would be, for instance, the one pursued by an insurance company which sues an insured to obtain the cancellation of a policy on the ground that it was originally obtained by fraud, misrepresentation, or as a result of the willful omission of a material fact. In both cases, the remedy is limited to taking back that to which there was never any entitlement.

Looking yet beyond the possible revocation of the respondent's citizenship, and assuming for pur\-poses of discussion that removal will necessarily result from a positive determination in this reference, I still do not believe that this would amount to a penal consequence for the purposes of section 11.

The question as to whether the removal of an inadmissible person from Canada under the terms of the Immigration Act constitutes a form of punishment or whether proceedings intended to obtain such a person's removal otherwise come within section 11 of the Charter has been authoritatively decided.

In Rudolph v. Canada (Minister of Employment and Immigration), Hugessen J.A. said on behalf of the Court of Appeal:²⁹

. . . the applicant is not before this Court as A person slated for deportation does not stand before "person charged with an offence".

In Hurd v. Canada (Minister of Employment and Immigration), MacGuigan J.A. writing for a different bench came to the same conclusion for essentially the same reasons.³⁰

Finally, in Chiarelli v. Canada (Minister of Employment and Immigration), Sopinka J. expressed the Court's view that deportation is not punishment.³¹

What to do with the fruits of stolen money?

Let us examine the question of forfeiture of the fruits of fraud by considering two imaginary cases.

Immediate FFF (immediate forfeiture of the fruits of fraud).

In the first case, a person obtains one dollar through fraud, the fraud is discovered immediately, and the person is made to return the single dollar. In such a case, everyone would agree that the person has been made to forfeit the fruits of his fraud, and that no punishment has been imposed.

Delayed FFF (delayed forfeiture of the fruits of fraud)

However, let us now imagine a somewhat different case. We start with the same person obtaining the same dollar through the same fraud. This time, however, the fraud is not discovered immediately. Instead, the person invests the dollar, and through astute and assiduous management of his investment over the course of fifty years turns it into one hundred million dollars. At the end of the fifty years, however, the old fraud of one dollar is discovered. What action at this later time constitutes a forfeiture of the fruits of fraud?

Punitive FFF (punitive forfeiture of the fruits of fraud)

According to the punitive application of the triple-F rule, the entire one hundred million dollars must be forfeited because it is all traceable to the single stolen dollar, and thus it is all a fruit of fraud. And yet we see that forfeiture has very different effects in the immediate and delayed cases. In the immediate case, the setback to the person of forfeiture is proportional to the magnitude of his wrongdoing, both being negligible: he steals a dollar; immediately afterward he loses a dollar. In the delayed case, the forfeiture can be seen to have a ruinous effect.

Neutral FFF (neutral forfeiture of the fruits of fraud)

To impose in the delayed case a non-punitive or neutral forfeiture of the fruits of fraud � and no more than the fruits of fraud � would require an estimate on the part of the court of what the person's life would have been had he been forced to return the stolen dollar immediately. Such an estimate would have to start with the recognition that this person appears to be intelligent, industrious, and resourceful, such that if he had never stolen that one dollar, or had stolen it and immediately forfeited it, his life would have been just as prosperous as if he had never stolen it, or if he had stolen it and immediately forfeited it, because legitimately obtaining some other dollar to begin his investment career would not have been difficult. Thus, according to a neutral FFF, the person might be required to forfeit the one stolen dollar, plus the compounded interest that the one dollar would have accrued over the course of fifty years, plus the gains resulting from starting the investment career a day or two earlier than would have been possible in the absence of fraud. But he would not have to forfeit the one hundred million dollars. This would be the neutral interpretation of the triple-F rule. Note that it is only the neutral interpretation that sets back the person an equivalent amount whether applied to immediate or to delayed cases. The punitive FFF, in contrast, deprives the person only of the fruits of fraud in the immediate case, but strips him of a lifetime of accomplishment in the delayed case. The punitive FFF imposes upon the person an unjust and perhaps unique burden � that the greater the tardiness of the state in initiating proceedings, the more ruinous does the punishment imposed upon him become.

What to do with the fruits of illicit immigration?

Let us now apply this same reasoning to the case of a person committing a fraud in applying for immigration to Canada. Here also let us imagine two cases.

Immediate FFF (immediate forfeiture of the fruits of fraud)

In the first case, the person's application for immigration to Canada is approved, but the following day it is discovered that he misrepresented, say, his country of birth, and as a result his permission to immigrate to Canada is withdrawn. In such a case, all must agree that he has been subjected to no more than a forfeiture of the fruits of fraud, without any additional punishment.

Delayed FFF (delayed forfeiture of the fruits of fraud)

However, what if the fraud is not discovered for half a century, during which time the person makes his way to Canada, learns to speak English, adapts to Canadian customs, completes his education, builds a life, establishes a reputation, raises a family, performs community services, acquires assets?

Punitive FFF (punitive forfeiture of the fruits of fraud)

According to the punitive interpretation of the triple-F rule, it can be argued that all these things were made possible by the original fraud, and so that all these things, or as many as feasible, can legitimately be confiscated by the state, whether this be directly by formal forfeiture and deportation, or indirectly through pauperizing legal fees and the destruction of reputation.

Neutral FFF (neutral forfeiture of the fruits of fraud)

But what does the neutral interpretation of the triple-F rule say of the delayed case? It says that although Canadian citizenship is immensely valuable in the sense that once one has begun to rely on it, its revocation is a momentous loss, yet to the stateless refugee following World War II, the right to immigrate to Canada did not possess nearly the same value. The reason is that if his permission to immigrate to Canada had been denied or withdrawn, he would have had the option of applying � without fraud � for immigration to the United States, or to England, or to Australia, or to New Zealand. He could have applied to Austria, to Germany, to France, to Norway, to Sweden, to Denmark. He could have applied to South Africa. He could have applied to any one of a dozen similarly-promising countries. Any one of the countries on a long list would have offered him a comparable standard of living, equivalent opportunities for advancement, equivalent protection under the law, equivalent civil rights and freedoms. But could this person have gained admission to any of these other countries? The probability that he could have gained admission to at least one such country was high simply because the countries must have had different criteria for admission and rejection, and he would be likely to satisfy the criteria somewhere. For example, while service in the German armed forces might have decreased his chances of being admitted to some countries, it might have increased his chances of being admitted to Germany or Austria � this in much the same way that a Vietnamese national having served with American forces increased his chances of being admitted to the United States just before and just after the fall of Saigon. To such a person following the war, then, his fraudulently-obtained permission to immigrate to Canada must be considered to be more nearly equivalent in value to the fraudulently-obtained dollar in our previous case � of immense value in the sense that much could subsequently be built from it, and yet of small value in the sense that many equivalent alternatives lay at hand.

The defect in the line of reasoning which holds that a half-century-delayed denaturalization and deportation constitute no more than the imposition of a forfeiture of the fruits of fraud is that the denaturalization and deportation take away a great deal that the person would have accomplished for himself during that same half-century even without the fraud. But if these benefits would have been won even without the fraud, then they cannot be said � except in a trivial sense � to be the fruits of fraud. They must, rather, be said to be predominantly the fruits of industry and of virtue. To subject such a person to denaturalization and deportation is to subject him to a very heavy punishment indeed; it is not merely to return him to the status quo ante the fraud � for this would be to take him back in time to his youth, and to return to him then the many options which were available to him at that time. It is, rather, to deprive him of much that he has built while leaving him with no opportunity to rebuild. Perfect justice would require the divine omniscience which could say, "If this person had been denied entry to Canada, then he would not have become a General Motors mechanic in Oshawa, but would have become instead a sheep rancher in Australia," and would require after that the divine omnipotence which could take away from him the fruit of fraud which was his life as a Canadian mechanic, and substitute in its place the non-fraudulent fruit of a life as an Australian rancher. This, of course, is beyond the power of the courts to perceive or to implement, and what they must beware of doing in its place is the severely punitive taking away this person's life as a Canadian and leaving him nothing.

The passages in the Canada v Dueck judgment below that are pertinent to the Triple-F question have been emphasized in blue font.

T-938-95

The Minister of Citizenship and Immigration (Applicant)

Johann Dueck (Respondent)

Indexed as: Canada (Minister of Citizenship and Immigration) v. Dueck (T.D.)

Trial Division, Noël J.--Toronto, December 11 and 12; Ottawa, December 23, 1997.

Citizenship and Immigration � Status in Canada � Citizens � Reference under Citizenship Act, ss. 10, 18 as to whether respondent obtained citizenship by false representation, fraud, concealing material circumstances � Proceedings said to be prosecution for war crimes under guise of citizenship reference � Citizenship reference civil in nature without penal consequence � Decision under Act, s. 18 factual finding not determinative of legal rights � Forfeiture of fruits of fraud not punishment per se � No retribution involved � Act imposing on citizenship applicants duty to be truthful.

Constitutional law � Charter of Rights � Respondent in Citizenship Act, ss. 10, 18 reference seeking Charter protection as person accused of war crimes, "charged with an offence" under Charter, s. 11 � Freedom not to be forcibly moved said to be "liberty" under Charter, s. 7 � Reference not criminal, quasi-criminal proceeding � Taking back of privilege acquired by fraud not punishment � Proceedings intended to obtain removal of inadmissible person not within Charter, s. 11.

Administrative law � Reference � Minister seeking directions setting down procedure to be followed in reference under Citizenship Act, s. 18 � Party targeted by administrative proceeding not shielded from pre-trial compulsion � No void in rules prescribed for hearing of s. 18 reference � Application of relevant rules of practice not diminishing respondent's right to be treated fairly in compliance with principles of natural justice � Procedure to be followed by reference to rules of practice governing actions.

This was a motion for directions setting down the procedure to be followed in respect of a reference under section 18 of the Citizenship Act. In January 1995, the Registrar of Canadian Citizenship sent a notice of revocation to the respondent, advising him of the Minister of Citizenship and Immigration's intention to submit a report to the Governor in Council recommending that his citizenship be revoked. The Minister then filed a notice of reference before this Court, seeking a declaration that the respondent had obtained his citizenship through false representation, fraud, or by knowingly concealing material circumstances. The respondent argued that the present proceedings involved allegations of war crimes and that he was being prosecuted for those crimes under the guise of a citizenship reference. He was therefore of the view that being accused of war crimes, he should be afforded the procedural, evidentiary and Charter protection normally reserved to the criminal process. Moreover, the respondent submitted that, for the purposes of these proceedings, he was a "person charged with an offence" under paragraph 11(c) of the Charter and alternatively, that these proceedings interfered with his "liberty" as set out in section 7 of the Charter. Before dealing with the applicant's motion for directions, the Court had to rule on the respondent's arguments.

Held, the procedure to be followed should be set down by reference to the rules of practice governing actions.

Sections 10 and 18 of the Citizenship Act give the Court a very precise statutory mandate. If the Court was to operate within the parameters of this mandate, neither the applicant's motive nor the nature of what underlies the alleged fraud could have any impact on the character of the pro\-ceedings. Whether the matter underlying the alleged fraud pertained to war crimes or any other motive, the only issue upon which the Court could adjudicate remained the same: has the person concerned obtained citizenship by false representation, fraud or by knowingly concealing material circumstances? A reference conducted under section 18 of the Citizenship Act is in the nature of a civil proceeding in which the civil standard of proof applies. A decision made on a section 18 reference constitutes a factual finding by the Court and is not finally determinative of any legal rights. A section 18 reference is not a criminal or quasi-criminal proceeding and in itself, involves no penal consequence. The forfeiture of the fruits of fraud is not punishment per se. The return of something obtained by fraud or deceit is a neutral event. A proceeding, the sole purpose of which is to put an individual in the situation in which he would have been if no fraud had been committed, is civil in nature; no retribution is involved. A person who has obtained Canadian citizenship by fraud knows or ought to know that his status as a Canadian citizen is precarious. The Citizenship Act imposes on citizenship applicants a duty to answer questions truthfully and provides the state with the right to obtain revocation if it can be shown that the duty was not met. Section 11 of the Charter would not apply even if citizenship revocation would necessarily result from a positive determination in this reference. Deportation is not punishment.

The respondent argued that paragraph 11(c) of the Charter operates as a complete bar to those parts of the applicant's motion that called for reciprocal pleadings, pre-trial production of documents and discovery. There is no case law establishing that a party targeted by an administrative proceeding can effectively be shielded from pre-trial compulsion. Rule 920 of the Federal Court Rules is the only Rule that specifically addresses the procedure to be followed in a reference made under section 18 of the Citizenship Act. Rule 919 incorporates Rule 5 (the gap rule) which in turn directs the Court to adopt a procedure by reference to "the other provisions of these Rules". There is no void in the rules prescribed for the hearing of a reference under section 18 of the Citizenship Act. The application of the relevant rules of practice does not diminish the respondent's right to be treated fairly in strict compliance with the principles of natural justice. These rules give the respondent the means to obtain full disclosure of the applicant's case together with all relevant documents and information. However, the principles of natural justice do not operate to prevent the respondent from being compelled to give evidence.

statutes and regulations judicially considered

Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 6, 7, 11.

Canadian Citizenship Act (The), S.C. 1946, c. 15, s. 21

Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18.

Criminal Code, R.S.C., 1985, c. C-46, ss. 7(3.71) (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1), (3.72) (as enacted idem), (3.73) (as enacted idem; S.C. 1992, c. 1, s. 58), (3.74) (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1), (3.75) (as enacted idem), (3.76) (as enacted idem), (3.77) (as enacted idem), 446(2).

Federal Court Rules, C.R.C., c. 663, RR. 1, 2 (as am. by SOR/90-846, s. 1; 92-43, s. 1), 3 (as am. by SOR/94-41, s. 1), 4, 5, 408, 409(b), 413, 448 (as am. by SOR/90-846, s. 15), 452 (as am. idem), 919, 920.

Immigration Act, R.S.C., 1985, c. I-2.

cases judicially considered

applied:

Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; (1997), 151 D.L.R. (4th) 119; 118 C.C.C. (3d) 443; 10 C.R. (5th) 163; 40 Imm. L.R. (2d) 23; 218 N.R. 81; Canada (Secretary of State) v. Delezos, [1989] 1 F.C. 297; (1988), 22 F.T.R. 135; 6 Imm. L.R. (2d) 12 (T.D.); R. v. Wigglesworth, [1987] 2 S.C.R. 541; (1987), 45 D.L.R. (4th) 235; [1988] 1 W.W.R. 193; 61 Sask. R. 105; 28 Admin. L.R. 294; 37 C.C.C. (3d) 385; 60 C.R. (3d) 193; 81 N.R. 161; Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; (1997), 143 D.L.R. (4th) 577; 42 C.R.R. (2d) 1; 37 Imm. L.R. (2d) 195; 208 N.R. 81; Rudolph v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 653; (1992), 91 D.L.R. (4th) 686; 73 C.C.C. (3d) 442; 14 C.R. (4th) 169; 142 N.R. 62 (C.A.); Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; (1992), 90 D.L.R. (4th) 289; 2 Admin. L.R. (2d) 125; 72 C.C.C. (3d) 214; 8 C.R.R. (2d) 234; 16 Imm. L.R. (2d) 1; 135 N.R. 161; Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.); Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.).

distinguished:

Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; (1992), 96 D.L.R. (4th) 376; 76 C.C.C. (3d) 289; 141 N.R. 281.

considered:

Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696; (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.); R. v. Amway of Canada Ltd., [1987] 1 F.C. 3; (1986), 21 C.R.R. 238; 18 C.P.C. (2d) 226; [1986] 2 C.T.C. 148; 3 F.T.R. 248 (T.D.).

referred to:

Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 1 F.C. 828; (1997), 142 D.L.R. (4th) 270; 208 N.R. 21 (C.A.); Canada (Minister of Citizenship and Immigration) v. Tobiass, [1996] 2 F.C. 729; (1996), 41 Admin. L.R. (2d) 272; 116 F.T.R. 69 (T.D.); Hurd v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 594; (1988), 90 N.R. 31 (C.A.); R. v. Vermette, [1988] 1 S.C.R. 985; (1988), 14 Q.A.C. 161; 41 C.C.C. (3d) 523; 64 C.R. (3d) 82; 84 N.R. 296; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; R. v. S. (R.J.), [1995] 1 S.C.R. 451; (1995), 121 D.L.R. (4th) 589; 96 C.C.C. (3d) 1; 36 C.R. (4th) 1; 26 C.R.R. (2d) 1; 177 N.R. 81; 78 O.A.C. 161; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Canada (Minister of Citizenship and Immigration) v. Oberlander, [1997] F.C.J. No. 1828 (T.D.) (QL); Reference as to the effect of the Exercise by His Excellency the Governor General of the Royal Prerogative of Mercy upon Deportation Proceedings, [1933] S.C.R. 269; [1933] 2 D.L.R. 348; (1933), 59 C.C.C. 301; R. v. Stinchcombe, [1995] 1 S.C.R. 754; (1995), 162 A.R. 269; 96 C.C.C. (3d) 318; 38 C.R. (4th) 42; 178 N.R. 157; 83 W.A.C. 269; R. v. A, [1990] 1 S.C.R. 995; (1990), 55 C.C.C. (3d) 562; 77 C.R. (3d) 219; 47 C.R.R. 225; 36 Q.A.C. 144; Tyler v. M.N.R., [1991] 2 F.C. 68; (1990), 4 C.R.R. (2d) 348; [1991] 1 C.T.C. 13; 91 DTC 5022; 120 N.R. 140 (C.A.); Quebec Association of Protestant School Boards et al. v. Attorney-General of Quebec et al. (1983), 140 D.L.R. (3d) 33; 3 C.R.R. 114 (Que. S.C.); affd on other grounds (1983), 1 D.L.R. (4th) 573; 7 C.R.R. 139 (Que. C.A.); affd [1984] 2 S.C.R. 66; (1984), 10 D.L.R. (4th) 321; 9 C.R.R. 133; 54 N.R. 196; Canada v. Amway of Canada Ltd., [1987] 2 F.C. 131; (1986), 34 D.L.R. (4th) 190; 13 C.E.R. 138; 27 C.R.R. 305; [1987] 1 C.T.C. 97; 72 N.R. 211 (C.A.).

MOTION for directions setting down the procedure to be followed in respect of a reference conducted under section 18 of the Citizenship Act. Procedure to be followed by reference to the rules of practice governing actions.

counsel:

Donald A. MacIntosh and Cheryl D. E. Mitchell for applicant.

Donald B. Bayne and Michael Code for respondent.

solicitors:

Deputy Attorney General of Canada for applicant.

Bayne, Sellar, Boxall, Ottawa, for respondent.

The following are the reasons for order rendered in English by

Noël J.: The applicant moves for directions setting down the procedure to be followed in respect of this reference. Before I address the particulars of the applicant's motion I will briefly set out the history of this case in order to give the matter some perspective.

In January of 1995 the Registrar of Canadian Citizenship sent a notice of revocation to the respondent. The purpose of the notice was to advise the respondent of the Minister of Citizenship and Immigration's (the applicant) intention to submit a report to the Governor in Council recommending that the respondent's citizenship be revoked. The notice also advised the respondent of his right to have the matter referred to the Federal Court--Trial Division.

At the respondent's behest the applicant then filed a notice of reference before this Court, seeking a declaration that the respondent obtained his citizenship through false representation, fraud, or by knowingly concealing material circumstances. A short time later, in May of 1995, the applicant filed a notice of motion for procedural directions.

The applicant's motion for directions soon became submerged in a number of procedural disputes which, for a variety of reasons, persisted for almost a year's time. By reason of events unrelated to the present motion a stay of proceedings was granted in this file [[1996] 2 F.C. 729 (T.D.)]. This stay was subsequently overturned by the Federal Court of Appeal [[1997] 1 F.C. 828]; a decision which was affirmed by the Supreme Court of Canada on September 25, 1997.¹

Approximately one month following the Supreme Court's lifting of the stay in this matter, the applicant withdrew the original motion for directions and filed the amended motion for directions presently before the Court.² The applicant again seeks directions with respect to the procedure to be followed in this reference. In particular the applicant seeks an order:

(1) Requiring the Respondent to serve and file a summary of facts and evidence on which he intends to rely at the hearing of the case;

(2) Requiring both parties to deliver a list of documents containing:

(a) sufficient description of all documents relevant to any matter in issue that:

(i) are in the possession, power or control of the party and for which no privilege is claimed;

(ii) are in the possession, power or control of the party and for which privilege is claimed;

(b) a statement that the party is not aware of any relevant documents other than those that are set out in the list;

(3) Requiring either party that upon becoming aware that the list of documents served and filed by the party is inaccurate or deficient, to serve and file a supplementary list, correcting the inaccuracy and deficiency without delay;

(4) Requiring both parties to allow the other party to inspect all documents, described in the list of documents, except those for where privilege is claimed, during business hours, at a mutually convenient time, no sooner than fifteen days after the service of the list of documents and to make copies of any such documents, at the inspecting parties expense;

(5) Providing that both parties may conduct an oral examination for discovery of the other party, but in the case of the Applicant, the person discovered shall be a representative of the Applicant selected by her;

(6) Providing that either party may by notice (Form 23, Federal Court Rules), require that the other party admit any documents and where such notice has been served, if the party served has not within twenty days of the date of service, or such further period as the party serving the notice or the Court may allow, served upon the other an affidavit either denying that the document is genuine, or setting forth the grounds for not admitting it, the party served shall be deemed to have admitted that that document is genuine;

(7) Providing that any party may not less than thirty days before the commencement of the trial by notice (Form 24, Federal Court Rules), request the other party to admit, for the purpose of the hearing of this case only, any specific facts mentioned in such notice;

(8) Providing that any party who intends to adduce expert evidence at the hearing of this case, shall serve and file an affidavit setting out the substance of the proposed evidence of each expert witness, at least thirty days prior to the commencement of the hearing;

(9) Fixing of dates for the completion of each of the steps referred to in subparagraphs (1), (2) and (5) above;

(10) Fixing the date for the hearing of this case.

The respondent resists those parts of the applicant's motion calling for the kind of pre-trial exchange of information normally coincident to a civil action. In particular, the respondent takes exception to the applicant's request for reciprocal pleadings, pre-trial production of documents and discovery, as set out in paragraphs 1 through 5 of the motion. At the same time, the respondent maintains that the extent of the disclosure which the applicant is prepared to give him is insufficient.

In support of his position, the respondent has advanced a very extensive argument which I will endeavour to summarize over the following paragraphs. This task is rendered more difficult by the fact that the respondent, in addition to advancing his own argument, has wholly adopted the equally extensive, but not altogether complementary argument put forth by the respondent in Canada (Minister of Citizenship and Immigration) v. Oberlander, [1997] F.C.J. No. 1828 (T.D.) (QL). Bearing this in mind, the following represents what in my view are the salient features of the respondent's position.

The respondent recounts in some detail the events surrounding the enactment of subsection 7(3.71) of the Criminal Code [R.S.C., 1985, c. C-46 (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1)].³ He contends that subsection 7(3.71) represents Parliament's "promise" to "deal with alleged war criminals" by way of criminal prosecution. The respondent observes that the present proceedings involve allegations of war crimes and infers that he is being prosecuted for war crimes under the guise of a citizenship reference. In the respondent's view, the "substance" of the applicant's case in these proceedings is proof of individual criminality, as opposed to proof of fraud, false representation or concealment of material circumstances as set out in the relevant provisions of the Citizenship Act [R.S.C., 1985, c. C-29]. The respondent is therefore of the view that he stands accused as a war criminal and that, at least in so far as the litigation of war crimes in these proceedings is concerned,⁴ he should be afforded the procedural, evidentiary and Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] protection normally reserved to the criminal process.

Despite the respondent's contention that this is a criminal prosecution being conducted under the guise of a citizenship reference, he nevertheless identifies these proceedings as an attempt by the state to strip him of Canadian citizenship. Having regard to the latter characterization, the respondent opposes the applicant's motion on four broad grounds:

1. That the applicant's proposed procedure violates paragraph 11(c) of the Charter.

2. That the procedure proposed by the applicant contravenes section 7 of the Charter.

3. That the applicant's proposed procedure is in conflict with paragraph 2(e) of the Canadian Bill of Rights [R.S.C., 1985, Appendix III].

4. That the applicant's proposed procedure violates the rules of natural justice and fairness.

In keeping with the respondent's characterization of these proceedings as an attempt to strip him of his citizenship, and eventually deport him, the respondent claims that he is a person "charged with an offence" within the meaning of section 11 of the Charter. The respondent further argues that paragraph 11(c) operates as a complete bar to those parts of the applicant's motion that call for pre-trial compellability.

To that effect, the respondent relies on the dictum of Wilson J. in R. v. Wigglesworth⁵ where she held that the protection afforded by section 11 extends beyond purely criminal matters. In the course of rendering her decision, Wilson J. formulated two alternative tests in order to determine whether a particular proceeding engages section 11.

The first test described by Wilson J. is the "by nature" test. A matter will fall within section 11 pursuant to the "by nature" test if it is intended to promote public order within a public sphere of activity. According to the respondent, these proceedings meet Wilson J.'s "by nature" test given that they are of a public nature intended to redress a wrong done to society at large.

The second test proposed by Wilson J. is the "penal consequence" test. A matter is said to have penal consequences if the magnitude of the sanction imposed suggests that its purpose is to redress a wrong done to society. The respondent argues that these proceedings meet this second test as well, given that their purpose is to obtain the "forfeiture" of his citizenship on the basis of a fraud on the public and eventually deport him.

In the event that paragraph 11(c) is found not to apply to these proceedings, the respondent claims that he may nevertheless resist the contested parts of the applicant's motion by virtue of section 7 of the Charter. According to the respondent, reciprocal pleadings, pre-trial production of documents and discovery, in the context of these proceedings, violate the "residual protection" against self-incrimination provided by section 7.

In support of the notion that section 7 applies to these proceedings the respondent relies on case law where the protection afforded to the individual by virtue of the "liberty" component of section 7 has been interpreted to encompass not only freedom from physical restraint, but also freedom of physical movement. In the respondent's view, the concept of freedom of physical movement includes the freedom not to be forcibly moved. The respondent notes that section 7 is to be interpreted by reference to the other provisions of the Charter, and that subsection 6(1) of the Charter guarantees to Canadian citizens a right to choose whether to "enter, remain in and leave Canada". On that basis, the respondent concludes that a citizen's right to choose whether to remain in or leave the country is a component of the right to "liberty" under section 7, and that subsection 6(1) of the Charter is a further indication that the freedom not to be forcibly moved constitutes a "liberty" within the meaning of section 7.

The respondent then argues that an examination of the denaturalization process reveals two threats to this broadly defined right to "liberty" sufficient to engage section 7 in these proceedings. First, the decision to revoke citizenship results in the loss of the subsection 6(1) right to choose whether to remain in or to leave Canada, which in turn results in a deprivation of "liberty" as defined above. Second, the possibility of deportation following a decision to revoke the respondent's citizenship presents an apprehended interference with his right not to be forcibly moved, which again results in a deprivation of "liberty".

The respondent insists that his section 7 "liberty" is engaged in these proceedings despite the fact that the Court does not make the ultimate decision whether to revoke his citizenship or to deport him from Canada. According to the respondent, the applicability of section 7 of the Charter to these proceedings must be viewed in light of certain government policy statements that indicate that the decisions to revoke and to deport can be presumed following a positive finding from the Court.

Paragraph 2(e) of the Canadian Bill of Rights stipulates that any hearing that is determinative of a person's "rights and obligations" must respect the principles of fundamental justice. The respondent recognizes that the principles of fundamental justice under paragraph 2(e) of the Bill of Rights are limited to procedural considerations. The respondent maintains, however, that the procedural considerations that underlay the principles of fundamental justice under section 7 of the Charter, namely the principle against self-incrimination, apply equally to the principles of fundamental justice under paragraph 2(e) of the Bill of Rights. The respondent claims that these proceedings will determine his rights and obligations under the Citizenship Act and that the same analysis set out in relation to the effect of section 7 on the applicant's motion, applies to paragraph 2(e) of the Bill of Rights.

Finally, the respondent argues that in the absence of a specific provision in the Citizenship Act or in the Federal Court Rules [C.R.C., c. 663] providing for pre-hearing compulsion in citizenship references, the Court should craft a procedure consistent with the principles of natural justice in the administrative law context. In this respect, the respondent claims that the modern rule in terms of disclosure is premised not on civil standards but on the criminal standard as established by the landmark case of R. v. Stinchcombe.⁶

Disposition

I turn first to the respondent's contentions regarding the character of these proceedings. The respondent expresses the view that the applicant's reference to this Court is a disguised means of mounting a war crimes prosecution against him. This perception is based in large part on the respondent's understanding of the reasons underlying the applicant's attempt to revoke his citizenship. According to the respondent, the applicant is motivated not by concerns relating to the Citizenship Act, but by the belief that he has participated in war crimes.⁷ The litigation of war crimes thus becomes the true focus or "substance" of these proceedings and the question as to whether the respondent made a false declaration in the course of obtaining his citizenship is merely backdrop. In the respondent's view, this imparts a criminal character to these proceedings and insulates him from the contested parts of the applicant's motion.

It is useful at this point to examine the statutory provisions that give rise to the present proceedings, sections 10 and 18 of the Citizenship Act. These sections provide:

10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,

(a) the person ceases to be a citizen, or

(b) the renunciation of citizenship by the person shall be deemed to have had no effect,

as of such date as may be fixed by order of the Governor in Council with respect thereto.

(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.

. . .

18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and

(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or

(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.

(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.

(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

Thus sections 10 and 18 give the Court a very precise statutory mandate. The Court must make a determination as to whether an individual has obtained, retained, renounced or resumed citizenship by either fraud, false representation or by knowingly concealing material circumstances. If the Court is to operate within the parameters of this mandate it is clear that neither the applicant's motive, nor the nature of what underlies the alleged fraud can have any impact on the character of the proceedings. Sections 10 and 18 do not confer upon the Court an unascertained jurisdiction susceptible to changes and adaptations depending on the nature and gravity of the circumstances giving rise to the hearing before it. Whether the matter which underlies the alleged fraud pertains to war crimes or something as mundane as marital status, the only issue upon which the Court may adjudicate remains exactly the same: has the person concerned obtained citizenship by false representation, fraud or by knowingly concealing material circumstances?

I note that the respondent's perception of the character of these proceedings is also based on certain comments made by the Supreme Court in Tobiass. In that case, the Court qualified the acts which the applicant maintains were concealed by the respondent in the course of obtaining citizenship as "the most wicked kinds of criminal activity . . . among the most heinous in history".⁸ Certainly, these are damning comments. However, in my view it is important that these comments be examined in the context in which they were made.

In Tobiass, the issue before the Court was whether a stay of proceedings was warranted. In balancing the competing values involved in the granting of a stay, the Court took into account society's interest in assuring that measures are taken to deal with persons suspected of having participated in war crimes. It was that consideration that prompted the Court to make the following remarks: "Canada's interest in not giving shelter to those who concealed their wartime participation in acts of atrocities outweighs any foreseeable harm that might be done to the appellants", and, "What is at stake here, in however small a measure, is Canada's reputation as a responsible member of the community of nations".⁹

That is the context in which the Court commented on the nature of the acts the applicant claims were concealed by the respondent. At no time did the Supreme Court intimate that the character of these proceedings varies according to the nature of the acts which are said to underlie the alleged fraud, or suggest that this Court, on a section 18 reference, should concern itself with anything other than that which it is authorized to decide under the statute. In that perspective, the gravity of the crimes alleged is relevant but only in so far as it serves to establish the alleged fraud.

Read in the context, the above-quoted remarks of the Supreme Court do however lend credence to the notion that the Citizenship Act and the Immigration Act [R.S.C., 1985, c. I-2] are complementary in nature and are constituent parts of a broader scheme. As McGillis J. observed in Copeland:¹⁰

A review of the Immigration Act and the Citizenship Act reveals that the laws pertaining to immigration and citizenship are complementary in nature, and collectively embody the legislative scheme which enables an immigrant to enter and to remain in Canada and to obtain citizenship. In that regard, the Immigration Act governs the admission, exclusion and removal of non-citizens, while the Citizenship Act regulates, among other things, the circumstances under which an immigrant may secure the right to obtain citizenship. In that sense, the Citizenship Act controls the final phase of a person's immigration to this country. The complementary nature of the two Acts becomes very clear in circumstances in which the statutory cessation of citizenship under paragraph 10(1)(a) of the Citizenship Act takes effect in relation to a person. In such a situation, the person's status in Canada and the question of potential removal from the country are governed by the provisions of the Immigration Act. It is also useful to note that both the Immigration Act and the Citizenship Act contain reference proceedings, including section 40.1 and section 18 respectively, requiring a judge of this Court to make factual findings for the purpose of assisting the Minister and the Governor in Council in discharging their statutory responsibilities concerning whether certain persons ought to be permitted to remain in Canada, as citizens or otherwise.

In the circumstances, I am satisfied that the basic interpretive principles enunciated in Ahani v. Canada, supra, are applicable to citizenship matters. I have therefore concluded that the scope of the proceedings under section 18 of the Citizenship Act must be analysed in the context of principles and policies underlying immigration and citizenship law, and not in the criminal law context. Indeed, as indicated earlier, a judge conducting a reference under section 18 of the Citizenship Act makes only a factual finding concerning the circumstances under which a person obtained his Canadian citizenship. To paraphrase my words in Ahani v. Canada, supra, that factual finding is purely and simply a citizenship matter. In the circumstances, I agree with Collier J. in Canada (Secretary of State) v. Luitjens, supra, that a reference conducted under section 18 of the Citizenship Act is in the nature of a civil proceeding in which the civil standard of proof applies.

I agree with McGillis J.'s interpretation of the administrative framework in which a citizenship reference operates and with her conclusion that such a proceeding is civil in nature. The respondent's argument that having regard to the character of these proceedings he is entitled to resist certain parts of the applicant's motion must fail.

As noted earlier, the respondent also challenges the applicant's motion on the ground that it is inconsistent with the principles against self-incrimination embodied in sections 7 and 11 of the Charter. Specifically, the respondent maintains that for the purposes of these proceedings he is a "person charged with an offence" pursuant to paragraph 11(c), and alternatively, that these proceedings interfere with his "liberty" as set out in section 7.

In Canada (Secretary of State) v. Delezos,¹¹ Muldoon J. in a reference under section 18 [then section 17] was confronted with the argument that the respondent in that matter stood in the same position as a person charged with an offence. The argument was that, as the respondent had already been convicted of the offence of uttering false documents in the course of obtaining Canadian citizenship, he could not be tried for the same offence again in the course of the reference proceeding. Paragraph 11(h) of the Charter was being relied upon.

Muldoon J. after noting that the respondent stood in no jeopardy of any penal consequence in the reference proceedings concluded that the enquiry was entirely civil in nature. Muldoon J.'s decision was subsequently cited with approval by the Court of Appeal in Hurd v. Canada (Minister of Employment and Immigration).¹²

That a reference under section 18 carries no penal consequence was in effect reaffirmed by the Court of Appeal in Luitjens v. Canada (Secretary of State).¹³ In that case, Linden J.A., writing for the Court, stated that the decision made on a section 18 reference constitutes a factual finding by the Court which is not finally determinative of any legal rights. Linden J.A. stated:¹⁴

Although the decision followed a hearing at which much evidence was adduced, it was merely a finding of fact by the court, which was to form the basis of a report by the minister and, eventually, a decision by the Governor in Council, as described by ss. 10 and 18(1). The decision did not finally determine any legal rights.

This passage was cited with approval by the Supreme Court of Canada in Tobiass. More particularly, the Supreme Court adopted this dictum as reflecting "the type of determination that the Court is called upon to make under subsection 18(1)" of the Citizenship Act in contrast with decisions which determine rights and obligations with finality and from which an appeal lies.¹⁵

Later in Luitjens, Linden J.A. relying on the logic underlying the above-quoted passage went on to explain why the absence of a right of appeal from a decision reached on a reference did not result in a breach of section 7 of the Charter. He said:¹⁶

I am of the view that s. 7 does not render s. 18(3) of no force and effect. First, at the time of the decision of the court, at least, s. 7 was not engaged in that there was not yet any deprivation of Mr. Luitjens' "life, liberty and security of the person". All that was decided by the trial judge was the fact that Mr. Luitjens obtained his Canadian citizenship by false representations. This finding may well form the basis of decisions by others, which may interfere with those rights at some future time, but this decision does not do so. Therefore, it is merely one stage of a proceeding which may or may not result in a final revocation of citizenship and deportation or extradition. There may be a right of review or appeal at a later stage, which is usually the case . . . . [Emphasis in original.]¹⁷

Counsel for the respondent suggests that this passage in so far as it relates to section 7 of the Charter is obiter and is inconsistent with the "settled" authority of the Supreme Court.¹⁸ I do not accept either suggestion. First, the statement is clearly ratio decidendi as it disposes of the very issue which the Court of Appeal was called upon to decide. Second, I do not believe that the case law referred to by the respondent¹⁹ constitutes "settled" authority for the proposition that the reasoning expressed by Linden J.A. is bad law. If anything, the recent decision of the Supreme Court in Tobiass confirms that a decision under section 18 is not finally determinative of any legal rights thereby lending strong support for the conclusion reached by Linden J.A. with respect to section 7 of the Charter.

Further, I do not believe that the decision of the Court of Appeal in Nguyen v. Canada (Minister of Employment and Immigration)²⁰ is at odds with the decision in Luitjens. In Nguyen, the applicant had already been made the subject of a danger to the public opinion issued by the Minister, and the section 7 challenge was directed against the scheme provided for under the Immigration Act for dealing with such persons. That is the context in which Marceau J.A. said on behalf of the Court:²¹

A legislative scheme may be denounced even if its parts are in themselves acceptable. The interaction between the parts may create a completely new context and force a new approach. This, I believe, is the attitude that the Supreme Court adopted in Chiarelli . . . .

Here, there is no attack on the legislative scheme as a whole. All that is advanced is that section 7 of the Charter is engaged when a notice of revocation reaches the stage of a reference before this Court. The decision of the Court of Appeal in Luitjens decides otherwise and in my view, disposes of the argument based on section 7.²²

Turning back to paragraph 11(c) of the Charter, it is clear on the basis of the authorities which I have cited that these proceedings meet neither the "by nature" test nor the "penal consequence" test enunciated by Wilson J. in Wigglesworth, supra. A section 18 reference is not a criminal or quasi-criminal proceeding and in itself, it involves no penal consequence.

Even if I were to look beyond the present proceedings and assume, as the respondent suggests, that revocation would necessarily result from a positive determination in this reference, I do not believe that section 11 could be said to apply.

In Rudolph v. Canada (Minister of Employment and Immigration), Hugessen J.A. said on behalf of the Court of Appeal:²⁹

. . . the applicant is not before this Court as A person slated for deportation does not stand before "person charged with an offence".

In Hurd v. Canada (Minister of Employment and Immigration), MacGuigan J.A. writing for a different bench came to the same conclusion for essentially the same reasons.³⁰

Finally, in Chiarelli v. Canada (Minister of Employment and Immigration), Sopinka J. expressed the Court's view that deportation is not punishment.³¹

The respondent also resists the applicant's motion on the ground that the procedure sought is inconsistent with the principles of natural justice and fairness as they apply to administrative proceedings lying at the high end of the judicial spectrum. The respondent maintains that the modern principles of administrative law require full disclosure from the applicant and at the same time virtually insulate him from pre-trial compulsion.

I am unaware of any case law that establishes that a party targeted by an administrative proceeding can effectively be shielded from pre-trial compulsion. Be that as it may, the respondent's argument is premised on what he perceives as a void with respect to the rules governing the conduct of this reference. It is in the face of this void that the Court is asked to craft a comprehensive procedure based on the modern principles of administrative law and without regard to the existing rules of practice. It is necessary at this point to examine the relevant Rules.

Rule 920 of the Federal Court Rules is the only Rule that specifically addresses the procedure to be followed in a reference made pursuant to section 18 of the Citizenship Act. It provides:

Rule 920. The following provisions shall apply to the hearing of a case (section 18 of the Act):

(a) upon receipt of a request to the Minister by a person (hereafter the "person") in respect of whom the Minister intends to make a report pursuant to section 10 of the Act that the case be referred to the Court, the Minister shall, if he decides to refer the case to the Court, forward a copy of the request and of his reference to the Court to the Registry;

(b) the Minister shall, within 14 days thereafter, file in the Registry and serve on the person,

(i) the application made by that person pursuant to subsection 14(1) of the Act,

(ii) the decision of the citizenship judge thereon,

(iii) a summary of the facts and evidence on which the Minister intends to rely at the hearing of the case, and

(iv) a list containing the names and addresses of any witnesses he proposes to call at the hearing of the case, and of any documents he proposes to tender in evidence;

(c) the provisions of Rules 906, 907, 908, 909, 910, 915, 916, 917 and 919 shall, with all necessary modifications, apply to a case.

Among the Rules made applicable to a reference by virtue of paragraph (c) of Rule 920, the only one of relevance for present purposes is Rule 919. It provides:

Rule 919. Such of the provisions of Part I as are appropriate shall apply to an appeal to which this Division applies; and where any matter arises in such an appeal and it is not otherwise provided for by the Act or this Division, it shall be dealt with in such a manner as the Court may direct.

Part I of the Rules consists of Rules 1 through 5 [Rule 2 (as am. by SOR/90-846, s. 1; 92-43, s. 1); Rule 3 (as am. by SOR/94-41, s. 1)], and deals with such things as definitions and computation of time. Of particular relevance is Rule 5, otherwise known as the gap rule:

Rule 5. In any proceeding in the Court where any matter arises not otherwise provided for by any provision in any Act of the Parliament of Canada or by any general rule or order of the Court (except this Rule), the practice and procedure shall be determined by the Court (either on a preliminary motion for directions, or after the event if no such motion has been made) for the particular matter by analogy

(a) to the other provisions of these Rules, or

(b) to the practice and procedure in force for similar proceedings in the courts of that province to which the subject matter of the proceedings most particularly relates,

whichever is, in the opinion of the Court, most appropriate in the circumstances.

Rule 919 therefore incorporates Rule 5 which in turn directs the Court to adopt a procedure by reference to "the other provisions of these Rules". It follows that there is no void in the rules prescribed for the hearing of a reference pursuant to section 18 of the Citizenship Act. The rules of practice apply in their fullness with such modifications as are made necessary by the particularities of the legal recourse embodied in section 18 of the Citizenship Act.

The application of the relevant rules of practice in no way diminishes the respondent's right to be treated fairly in strict compliance with the principles of natural justice. As regards the respondent's concerns about the applicant's failure to disclose relevant documents and information, the rules of practice give him the means to obtain full disclosure of the applicant's case together with all relevant documents and information.

The rules of practice have been devised precisely with the aim of facilitating a fair disposition of the issues which come before the Court and I am therefore prepared to adopt them by analogy in order to allow for the proper disposition of this reference. I do not, however, accept the respondent's position, that within or outside the procedural framework provided by the Rules, the principles of natural justice operate to prevent him from being compelled to give evidence in these proceedings.

An order will therefore issue setting down the procedure to be followed in this matter by reference to the rules of practice governing actions. Turning to the specifics of the applicant's motion for directions, the requests set out in paragraphs 3, 4, 6, 7 and 8 will be granted essentially as framed.

With respect to the request that the respondent serve and file a summary of facts and evidence,³² the form and content of this document should be determined by reference to the principles governing pleadings. This will allow for greater clarity as to what is in issue between the parties and will facilitate the resolution of disputes that may ensue in the course of oral and documentary discovery. The respondent will therefore be required to file a written statement of the position which he intends to take in these proceedings. In his statement, the respondent will admit the allegations of fact reflected in the applicant's summary of fact which he acknowledges to be true, deny those which he intends to challenge, and indicate his lack of knowledge of those allegations the truth of which he has no knowledge and state whether or not he admits them.³³ The document will also reflect a precise statement of the material facts on which the respondent intends to rely,³⁴ and for greater certainty will plead any matter which if not specifically pleaded might take the applicant by surprise.³⁵

With respect to documents³⁶ both parties will be ordered to file and serve an affidavit of document in full compliance with Rule 448 [as am. by SOR/90-846, s. 15] and also a notice to inspect, in conformity with Rule 452 [as am. idem]. Discovery³⁷ will be conducted orally. In the case of the applicant the person discovered will be a representative of the applicant selected by her.

With respect to the request for dates,³⁸ the Court is in a position to fix dates for the filing of the respondent's statement, the mutual exchange of affidavits of documents, inspection thereof and the conduct of discoveries. The order will provide for the statement of the respondent to be filed within 30 days of January 1, the mutual filing of the affidavits of documents and notices to inspect within 60 days, and the completion of the discoveries within 120 days.

Based on this schedule, the Court would have been in a position to set the trial down for hearing before the summer recess. However, counsel for the applicant indicated during the hearing that he now intends to seek an order for the taking of evidence abroad. He further indicated that he is not in a position to bring this application now. I was led to understand that the proposed witnesses, while identified, have yet to be contacted and that the logistics required to organize the contemplated commission are not in place. The applicant indicated that the motion would be brought within 60 days.

I indicated to counsel in open court that I was taken aback by this development. This reference has been outstanding since 1995. In her original notice of motion for directions, the applicant was seeking an order for the taking of evidence abroad. In October of 1997, after the stay of proceedings had been lifted by the Supreme Court, and the parties were informed that all outstanding pre-trial motions would have to be dealt with, the applicant withdrew her original motion for directions and filed an amended motion in which she was no longer seeking an order for commission evidence. The December hearing was intended to deal with all outstanding motions so as to allow for the section 18 reference to proceed without further delay.

That is the context in which counsel for the applicant noted in passing during the course of the hearing that he now wished to again seek an order for the taking of evidence abroad but that he was not in a position to do so because the necessary inquiries had yet to be made. Keeping in mind that the applicant is on record before both Divisions of this Court, and before the Supreme Court as having stated that this matter is of the utmost urgency precisely because witnesses are old and dying, the withdrawal of the application in October followed by the casual announcement two months later that it will eventually be reintroduced defies explanation.³⁹

Any issue surrounding the taking of evidence abroad should have been placed before the Court by now. Instead, three months after the Supreme Court has lifted the stay in this matter, the Court finds itself awaiting a motion which may not be filed for some time and which, if granted, will necessarily impact on the time when this reference can be heard. Although on the face of her motion the applicant requests that the Court fix a date for the hearing of this reference, her conduct precludes the Court from doing so.

An order is issued today in conformity with these reasons.

¹ Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.

² The only significant difference between this motion and the original motion filed in May of 1995 is the withdrawal of the request for a commission to take evidence abroad, and the addition of a request for mutual oral discovery.

³ Ss. 7(3.71) to 7(3.77) is the statutory framework devised by Parliament to allow for the retrospective criminal prosecution of persons accused of having committed extraterritorial war crimes and crimes against humanity.

⁴ i.e. the question as to whether or not such crimes were committed.

⁵ [1987] 2 S.C.R. 541.

⁶ [1995] 1 S.C.R. 754.

⁷ The respondent's conclusions as to the applicant's motive stem principally from two sources: A Government of Canada News Release dated January 31, 1995 ("Federal Government Announces War Crimes Strategy") and the applicant's summary of facts and evidence, dated May 16, 1996.

⁸ Tobiass, supra, at pp. 435-436.

⁹ Tobiass, supra, at pp. 429 and 435.

¹⁰ Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.), at pp. 509-510.

¹¹ [1989] 1 F.C. 297 (T.D.).

¹² [1989] 2 F.C. 594 (C.A.), at p. 605.

¹³ (1992), 9 C.R.R. (2d) 149 (F.C.A.). Leave to appeal to the Supreme Court refused [[1992] 2 S.C.R. viii].

¹⁴ Luitjens, supra, at p. 152.

¹⁵ Tobiass, supra, at p. 413.

¹⁶ Luitjens, supra, at p. 152.

¹⁷ Compare: The Effect of the Exercise by the Governor General of the Prerogative of Mercy on Deportation Proceedings, [1933] S.C.R. 269, at p. 278, per Rand J. as quoted by MacGuigan J.A. in Hurd v. Canada (Minister of Employment and Immigration), supra, at p. 606.

¹⁸ Para. 41 of the respondent Oberlander's memorandum of fact and law.

¹⁹ R v. Vermette, [1988] 1 S.C.R. 985, at p. 992; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441, at p. 485; R. v. S. (R.J.), [1995] 1 S.C.R. 451, at p. 479; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 206-208 per Wilson J.; R. v. A, [1990] 1 S.C.R. 995; Tyler v. M.N.R., [1991] 2 F.C. 68 (C.A.); Quebec Association of Protestant School Boards et al. v. Attorney-General of Quebec et al. (1983), 140 D.L.R (3d) 33 (Que. S.C.); affd on other grounds (1983), 1 D.L.R. (4th) 573 (Que. C.A.); affd [1984] 2 S.C.R. 66.

²⁰ [1993] 1 F.C. 696 (C.A.).

²¹ Nguyen, supra, at p. 705.

²² It also logically follows from the decision of the Court of Appeal in Luitjens that any residual right against self-incrimination which according to the respondent is embodied in s. 2(e) of the Canadian Bill of Rights would not be operative at the stage of a reference.

²³ This is different from the situation where forfeiture of the products of crime is made an adjunct to a criminal conviction in which case it is treated procedurally as part of the sanction imposed by law for the commission of the offence. See for example s. 446(2) of the Criminal Code.

²⁴ [1987] 1 F.C. 3 (T.D.).

²⁵ "It is true that, . . . it is alleged that the defendants are liable to Her Majesty for additional duties of $1,299,119.31, . . . . However, judgment in respect of that alleged liability is not sought in this action. The relief sought, . . . , is limited to `the sum of $9,415,706.66 by way of forfeiture' . . . . I agree with the learned Trial Judge in the conclusion that the applicable provisions of sections 180 and 192 of the Customs Act, . . . , provide for the recovery of a penalty by a civil proceeding in this Court and, it follows, that this is a penal action"; Canada v. Amway of Canada Ltd., [1987] 2 F.C. 131 (C.A.), at pp. 133-134, per Mahoney J.A. writing for the Court.

²⁶ Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065.

²⁷ [1997] 1 S.C.R. 358, at p. 395. It is significant that this characterization was used by the Supreme Court in Tobiass, supra, at p. 435, in assessing the interests at stake from the perspective of the respondent in the course of evaluating the opportunity of granting a stay.

²⁸ The Canadian Citizenship Act, S.C. 1946, c. 15, s. 21.

²⁹ [1992] 2 F.C. 653 (C.A.), at p. 657.

³⁰ Supra, at pp. 605-606.

³¹ [1992] 1 S.C.R. 711, at p. 735.

³² Para. 1 of the amended notice of motion.

³³ Rule 413 by analogy.

³⁴ Rule 408 by analogy.

³⁵ Rule 409(b) by analogy.

³⁶ Para. 2 of the amended notice of motion.

³⁷ Para. 5 of the amended notice of motion.

³⁸ Paras. 9 and 10 of the amended notice of motion.

³⁹ The suggestion by counsel (at p. 171 of transcript) that the application for a commission was not pursued in October because it would have been "unwieldy" to proceed with it together with the other requests having regard to the "very many and very complex issues" involved is, in the circumstances of this case, no explanation at all.

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