COURT FILE NO.: C-1076-03
RE: Helmut Oberlander v. Attorney General of Canada and The Minister of Citizenship and Immigration
BEFORE: The Honourable Mr. Justice R.D. Reilly
COUNSEL: Eric Hafemann, for the Applicant
Donald A. MacIntosh, John Loncar, Netta Logsetty, for the Respondents
 There are in fact one application and two motions before the court for determination. By his application, Mr. Oberlander seeks an order to quash the Order in Council issued by the Governor in Council on June 12, 2001 revoking Mr. Oberlander's citizenship. Mr. Oberlander further seeks an order granting a stay of proceedings before the Immigration and Refugee Board (Adjudication Division) with respect to his deportation. He also seeks an order in the nature of mandamus requiring the Ministry of Citizenship and Immigration to issue a certificate of citizenship to him. Finally, Mr. Oberlander seeks a declaration that he, having acquired domicile in Canada, cannot be ordered deported, together with the usual corollary relief.
 By his motion, Mr. Oberlander seeks a stay against the continuation of the inquiry before the Immigration and Refugee Board (Adjudication Division) pending disposition of this application or, as alternative relief, if a stay of that inquiry is not granted, an order that no deportation order shall issue against Mr. Oberlander pending disposition of this application.
 The respondents, the Attorney General of Canada and the Minister of Citizenship and Immigration, by their motion, seek an order staying both the application and Mr. Oberlander's motion pursuant to s. 106 of the Courts of Justice Act.
 For purposes of convenience and with Mr. MacIntosh's approval, I shall simply refer to the respondents, the Attorney General of Canada and the Minister of Citizenship and Immigration, as "the Government".
 Counsel have agreed that at this stage of the proceeding with respect to the application I must simply determine whether I have or will assume jurisdiction; otherwise expressed, whether I will assume carriage of the application on its merits. While counsel have addressed the application on its merits to some extent, their submissions were intended to address only the issue of whether I should assume jurisdiction. If I determine to assume carriage of the application on its merits, then counsel will be free to address such merits in much greater detail. The determination of the two motions before the Court, that of Mr. Oberlander and that of the Government, will be largely determined by my decision as to whether to assume carriage of the application on its merits.
 For reasons I shall presently enunciate, I conclude this Court should, indeed must, assume carriage of the application on its merits with respect to some of the issues raised. In any comments I may make during the course of this ruling, I do not want to be seen as passing final judgment on such merits. My ruling is simply that the application has sufficient merit and the circumstances otherwise warrant the Court's acceptance of jurisdiction to determine some issues on their merits. Having accepted carriage of the application, having assumed jurisdiction to determine certain issues, for reasons I will touch on later in this ruling, I also grant the applicant's motion and direct an order to stay any proceedings before the Immigration and Refugee Board (Adjudication Division), which might lead to an order for Mr. Oberlander's deportation pending my ruling on the application. For the same reasons, I dismiss the Government's motion to stay the application and the applicant's motion.
 It is appropriate that I summarize the proceedings which have resulted in the current application.
 On January 27, 1995 Mr. Oberlander was served by the Minister of Citizenship and Immigration with notice that she intended to make a report to the Governor in Council pursuant to s. 10 and s. 18 of the Citizenship Act to revoke his citizenship. The grounds alleged were that he had been admitted to Canada for permanent residence and obtained Canadian citizenship by "false representations or fraud or by knowingly concealing material circumstances in that you failed to divulge to Canadian Immigration and citizenship officials your membership in the German Sicherheitspolizei und SD and Einsatzkommando 10A during the Second World War and your participation in the executions of civilians during that period of time". In accordance with s. 18 of the Immigration Act, Mr. Oberlander was also advised of his right to have the Minister refer the case to the Federal Court of Canada - Trial Division. By letter dated February 20, 1995 Mr. Oberlander so requested. The Minister of Citizenship and Immigration then directed a notice of such reference dated April 24, 1995.
 A number of procedural matters were dealt with over the following year. In the spring of 1996 the Government apparently became dissatisfied with what it perceived as the slow progress of this case (and other cases as well) before the Federal Court. As a result of clearly ill-advised and inappropriate communications between the then Assistant Deputy Attorney General and the Chief Justice of the Federal Court and between the Chief Justice and the Associate Chief Justice a motion was brought by Mr. Oberlander for a stay of proceedings based on abuse of process. A stay was in fact granted on July 4, 1996 by Mr. Justice Cullen of the Federal Court. As a result of what he concluded was a clear interference with judicial independence, Mr. Justice Cullen directed a stay in Mr. Oberlander's case and in two other cases where similar applications had been made by the Government. Mr. Justice Cullen's order was subsequently overturned by the Federal Court of Appeal. Ultimately, on June 26, 1997, the Supreme Court of Canada confirmed the decision of the Federal Court of Appeal, overturning Mr. Justice Cullen's stay. I intend to deal in some greater detail with the decision of the Supreme Court presently. I would simply note that the Supreme Court determined that there had been an abuse of process and an interference with judicial independence (even if such was not intended). However, the public interest in determining the truth of the serious allegations made against Mr. Oberlander (and in the other two cases as well) required that the cases proceed, that the allegations be determined on their merits.
 On December 23, 1997 Mr. Justice Noël of the Federal Court issued an order giving directions for the procedure to be followed on the reference directed in accordance with s. 18 of the Citizenship Act. In essence, he ruled that the reference for a decision by a judge of the Federal Court was akin to a civil or administrative proceeding. None of the protections (Charter or common law) that an accused person in a criminal case was entitled to would apply to Mr. Oberlander. Thus Mr. Oberlander, together with the Government, was obliged to provide full disclosure and submit to oral discovery. Mr. Justice MacKay of the Federal Court conducted his reference over an extended period and heard a considerable body of evidence. He released his decision on February 28, 2000. At the risk of overly summarizing his findings of fact, Mr. Justice MacKay concluded that there was no evidence that Mr. Oberlander was a former member in the German Sicherheitspolizei und SD and there was no evidence that he participated in the execution of civilians during the war. Otherwise expressed, there was no evidence that Mr. Oberlander was personally involved in any war crimes or crimes against humanity. Mr. Justice MacKay did conclude, however, that Mr. Oberlander was a member of Einsatzkommando 10A, at least a member by association, and further, that he had "probably" misrepresented such membership when he applied for immigration to Canada.
 Notwithstanding the fact that Mr. Justice MacKay had concluded Mr. Oberlander was not personally involved in any war crimes or crimes against humanity, the Minister of Citizenship and Immigration continued in accordance with s. 10 of the Citizenship Act to make a report to the Governor in Council with the strong recommendation that Mr. Oberlander's citizenship be revoked. The Governor in Council then issued an order dated July 12, 2001 revoking Mr. Oberlander's citizenship.
 On August 27, 2001 the Minister of Citizenship and Immigration issued a direction for an immigration inquiry. Without question, the Minister's intention was to deport Mr. Oberlander.
 On October 31, 2001 Mr. Oberlander applied for judicial review of the decision of the Governor in Council to revoke his citizenship. He subsequently applied to a judge of the Federal Court for an order staying the immigration inquiry pending the hearing of the judicial review. On July 11, 2002 Mr. Justice Kelen of the Federal Court denied his request for a stay of the immigration hearing. On March 3, 2003 the Federal Court of Appeal confirmed the decision of Kelen J., denying a stay of the immigration hearing, albeit for more narrow reasons than those expressed by Kelen J. In sum, the Federal Court of Appeal determined that the motion for a stay of the immigration hearing was premature as Mr. Oberlander faced no "irreparable harm" unless and until a deportation order issued from the immigration hearing.
 Most recently, on August 1, 2003, Mr. Justice Martineau of the Federal Court - Trial Division, presiding on the judicial review of the order of the Governor in Council, declined to grant the relief sought by Mr. Oberlander. In essence, he ruled that the Governor in Council had acted properly and responsibly within its mandate in revoking Mr. Oberlander's citizenship. An application to appeal his decision is currently pending before the Federal Court of Appeal.
 The Government maintains that this Court has no jurisdiction to consider the issues raised by Mr. Oberlander. Mr. MacIntosh submits in part that these issues have already been determined by a court of concurrent jurisdiction (the decision on judicial review by Martineau J.) could have been determined by that court or may be raised on appeal before the Federal Court of Appeal. Therefore, Mr. MacIntosh submits, these issues are barred from consideration by this Court by the principle of issue estoppel. I disagree. None of the issues raised by Mr. Oberlander on this application were determined by Mr. Justice Martineau. If he had ruled on these issues, I would unquestionably have declined to rehear them. By this application, Mr. Oberlander cannot be given a "second chance" to have the same issues determined by another court of concurrent jurisdiction. Neither can this Court sit in a supervisory capacity of any decisions already made by Mr. Justice Martineau. I do not intend in my hearing of this application to review the findings made by Mr. Justice Martineau.
 With respect to the decision of MacKay J. on the reference, Mr. Justice Martineau stated at page 6 of his decision:
"In the case at bar, there is no issue raised against the findings made by the court or against the procedure followed by the Minister."
This statement may be somewhat surprising, given the pleadings and the submissions placed before him. If he misunderstood or misapprehended that material or the issues raised by Mr. Oberlander, that could be an issue before the Federal Court of Appeal. However, the bottom line is that he declined to rule or did not rule on the principal issues raised by this application. Arguably of greatest significance is Mr. Hafemann's submission that the procedure followed by the Minister before the Governor in Council resulted in a denial of Mr. Oberlander's constitutional rights, specifically his rights enshrined in s. 7 of the Charter of Rights and Freedoms. At the risk of overly summarizing his conclusions, Mr. Justice Martineau simply found that the procedure adopted by the Minister and the Governor in Council for the revocation of Mr. Oberlander's citizenship fell within the parameters of s. 10 and s. 18 of the Citizenship Act and that the conclusions of the Governor in Council were not "patently unreasonable". He made no ruling on the procedure itself and whether such procedure was in accordance with the principles of fundamental justice guaranteed by s. 7 of the Charter of Rights and Freedoms.
 Mr. MacIntosh, on behalf of the Government, submits that the issues which Mr. Oberlander now puts before this Court by his application could have been more specifically raised before Mr. Justice Martineau. Therefore, Mr. Oberlander should be barred from raising those issues now before this Court. Again, I disagree. Section 24(1) of the Charter specifically provides:
"Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."
 This Superior Court is a court of competent jurisdiction. Mr. Oberlander clearly has the right (subject to a qualification expressed below) to apply to this Court for a remedy, specifically, the remedy sought by this application. The fact that such remedy was not specifically sought previously before another court of competent jurisdiction in my view should not bar Mr. Oberlander from seeking his remedy in this Court if there is sufficient merit to his application.
 Mr. MacIntosh further submits that these issues, or at least some of these issues, could be raised before the Federal Court of Appeal on appeal of the decision of Martineau J. That may or may not be so. It is debatable whether the Federal Court of Appeal would entertain and consider issues not specifically dealt with by the trial judge, Martineau J. What is clear is that this Court has the jurisdiction to entertain those issues and any ruling I make on those issues will not be in conflict with the decision of Martineau J. I conclude that these issues, or at least some of them, are of such compelling importance that they more than justify this Court's assumption of jurisdiction. Any decision I make will of course be subject to appellate review, just as would have such decision made by Mr. Justice Martineau had he been called upon or had he chosen to rule on these issues.
 Mr. MacIntosh concedes that this court has a concurrent jurisdiction to deal with constitutional issues raised in immigration matters. However, he submits that the weight of jurisprudence supports the proposition that this court should concede such jurisdiction to the Federal Court system, which has both experience and expertise in immigration matters. The jurisprudence he cites is strongly supportive of that proposition, including such oft cited cases as Francis v. Canada (Minister of Citizenship and Immigration) (1999), 49 O.R. (3d) 136 (Ont. C.A.), Reza v. Canada,  2 S.C.R. 394, Baroud v. Canada (1995), 28 Imm. L.R. (2d) 123 (Ont. C.A.), Peiroo v. Minister of Employment and Immigration (1989), 69 O.R. (2d) 253 (Ont. C.A.), Shepherd v. Minister of Employment and Immigration (1989), 352 C.C.C. (3d) 386 (Ont. C.A.), John v. Minister of Citizenship and Immigration  O.J. No. 2215 (Ont. Ct. Gen. Div.), Court v. Ontario (Attorney General),  O.J. No. 1111 (Ont. Ct. Gen. Div.), Zolfiqar v. Minister of Citizenship and Immigration  O.J. No. 4698 (Ont. Ct. Gen. Div.) and Gao v. Minister of Citizenship and Immigration  O.J. No. 2784 (Ont. Sup. Ct.).
 All of these cases and all of the other jurisprudence cited by Mr. MacIntosh in support of his submissions deal specifically with immigration matters. They all deal with deportation orders or detention pending deportation and applications brought before a court of superior jurisdiction in different contexts. In some cases, there is an application for habeas corpus (which only a court of inherent jurisdiction can grant). In other cases, rights of children of the proposed deportee may be raised.
 I agree entirely with Mr. MacIntosh that, with rare exception, when such issues are put before a superior court, even though that court may have jurisdiction in law, it should, and usually does, defer such jurisdiction to the Federal Court system given the expertise and experience of the Federal Court in the area of immigration. There are rare exceptions, as recognized in Francis v. Canada (Minister of Citizenship and Immigration) (cited above), Ahani v. Canada (Minister of Citizenship and Immigration),  O.J. No.431 (Ont. Ct. App.), Suresch v. R. (1999), 38 O.R. (3d) 267 (Ont. Gen. Div.) and Bembenek v. Canada (Minister of Employment and Immigration) (1991), 69 C.C.C. (3d) 34 (Ont. Gen. Div.). In these cases, the Superior Court saw fit to assume jurisdiction if even for a limited purpose to ensure that expeditious justice was done in a matter involving essentially immigration and deportation.
 To summarize the jurisprudence, I accept the principle that in matters involving immigration, even when constitutional issues are raised, the Superior Court should defer its jurisdiction to the Federal Court system, which has both the experience and the expertise to deal with these issues. Parliament has set up a comprehensive scheme according such jurisdiction to the Federal Court system. It is only in the rare and exceptional case where the issues involve immigration that the Superior Court should assume jurisdiction.
 However, having carefully considered the matter, I conclude that most of the issues involved in this application did not focus on immigration or deportation. They focused instead on the process whereby Mr. Oberlander's citizenship was revoked and the constitutional issues which arise as a result thereof. As noted above, all of the jurisprudence cited by Mr. MacIntosh, and indeed cited by Mr. Hafemann, deal essentially with removal orders, with deportation or detention pending deportation. None of the parties seeking relief were citizens of Canada. Mr. Oberlander was for more than four decades a citizen of Canada prior to the revocation of his citizenship. Counsel were unable to provide me with any jurisprudence which supports the proposition that the Federal Court is a more appropriate court to determine the validity of revocation of citizenship. That is perhaps understandable as such proceeding must be rare. That is in part why I accept jurisdiction to determine the validity of the revocation of Mr. Oberlander's citizenship. I conclude, with great respect to my colleagues on the Federal Court that this court has at least the same experience and expertise in dealing with the revocation of citizenship, particularly when constitutional issues are raised. I appreciate Mr. MacIntosh's submission and conclude it has some merit that immigration and citizenship (and in particular, the Immigration and Refugee Protection Act and the Citizenship Act) are part of a comprehensive whole and that there is significant interrelationship between the two Acts. My acceptance of that proposition, however, does not deter me from my conclusion that the proceedings whereby Mr. Oberlander had his citizenship revoked are a distinct issue over which this court has jurisdiction, particularly when constitutional issues are raised. In the circumstances of this case, I conclude it would be wrong for this court to avoid the responsibility of determining these issues and simply defer such determination to the Federal Court. This is particularly so where determination of these issues is of such importance both to Mr. Oberlander and to any other citizen served with notice in accordance with s. 18 of the Act. I would repeat my concern that the Federal Court of Appeal may not be in a position to make such determination as these issues were not dealt with by the Federal Trial Court.
 I would again emphasize that my following comments are not to be taken as expressing a view as to the ultimate merits of the application. They are simply intended to express my view that some of the issues raised by Mr. Oberlander merit determination. Some of these issues, if raised by themselves, would not justify this court's assuming jurisdiction to hear the application. However, concluding that the application itself has merit, I will permit Mr. Oberlander, through his counsel, to address such issues. I would add that Mr. Hafemann has failed to persuade me that several of the issues he raises have sufficient merit to justify this Court's assumption of jurisdiction. I refer to allegations of infringement of Mr. Oberlander's rights as guaranteed by secs. 11, 12 and 15 of the Charter. I touch upon the issues in no order of priority.
 Mr. Hafemann submits, on behalf of Mr. Oberlander, that counsel for the Government committed a fraud on the Supreme Court of Canada when the Government pretended that it would be able to present evidence that Mr. Oberlander was a member of the German Sicherheitspolizei und SD during the Second World War and that he participated in the executions of civilians during that period of time. In essence, Mr. Hafemann submits that government counsel were aware from the onset from information provided by their witnesses that Mr. Oberlander could not have been a member of the Sicherheitspolizei und SD or that he participated in any way in the executions of civilians during the war. Mr. Hafemann submits that taking the decision of MacKay J. at its highest, if the Government had conceded before the Supreme Court that they had at best evidence that Mr. Oberlander may have been a member by association with Einsatzkommando 10A during that period but was in no way personally involved in war crimes or crimes against humanity, then the decision of the Supreme Court, at least with respect to Mr. Oberlander, would have been that proceedings against him should be stayed in accordance with the original ruling by Cullen J.
 In part, Mr. MacIntosh, on behalf of the Government, submits that such conclusion is not clear from the judgment of the Supreme Court. With respect, I disagree. It is clear from the judgment of the Supreme Court in Tobiass, Dueck and Oberlander v. The Minister of Citizenship and Immigration, indexed as Canada (Minister of Citizenship and Immigration) v. Tobias (1997), 3 S.C.R. 391, that the court declined to approve the stay originally directed by Cullen J. in each of the three cases because it expected a determination on the merits of evidence relating to war crimes or crimes against humanity. I appreciate the issue is slightly clouded by the fact that two other persons besides Mr. Oberlander were involved in the consideration of prosecutors and by the Supreme Court. However, even if there was evidence which the Government could call that Mr. Tobiass or Mr. Dueck were indeed involved in war crimes and if the Government knew full well that there was no evidence that Mr. Oberlander was so involved, then Mr. Hafemann submits there was an obligation on Government counsel as officers of the court to make that clear to the Supreme Court.
 In my view, the Supreme Court clearly overturned the stay of proceedings against Mr. Oberlander (together with the other two litigants) as a result of the reasonable conclusion that the allegation of participation in war crimes or crimes against humanity required determination on the merits by the court. At paragraph 93 of the decision the Court states:
"Third, Canada's interest in not giving shelter to those who conceal their wartime participation in acts of atrocities outweighs any foreseeable harm that might be done to the appellants or to the integrity of the system."
Mr. Hafemann points out that the evidence in this case before Mr. Justice MacKay did not reveal any "wartime participation in acts of atrocities" on Mr. Oberlander's part.
 At paragraph 109 the Supreme Court states:
"On the other side of the balance, society's interest in having a final decision on the merits is obvious. It is imperative that the truth should come to light. If it is not proven that the appellants did the things they are said to have done, then they will retain their citizenship. But if some or all of the alleged acts are proven, then the appropriate action must be taken. What is at stake here, in however small a measure, is Canada's reputation as a responsible member of the community of nations. In our view, this concern is of the highest importance."
At paragraph 110 the Court stated:
"The crimes involved rank among the most heinous in history, and the civilized world's resolve to apply the appropriation sanctions should not be interfered with lightly. What transpired between Mr. Thompson and the Chief Justice on March 1, 1996 cannot justify such interference, wrong and improper as it was. If it were established that Mr. Thompson and the Chief Justice had acted in bad faith and not out of a legitimate concern for the expeditious conduct of the appellants' cases, then this might have constituted one of those rare and clearest of cases. But this was not the case. As matters stand, society's interest in seeing their cases through to their conclusion is of a most pressing nature and outweighs the affront to the appearance of judicial independence."
 In summary, the Supreme Court determined in paragraph 111:
"It is in the public interest that allegations of the most wicked kinds of criminal activity should be scrutinized by the judiciary."
Mr. Hafemann's position quite simply is that the government knew Mr. Oberlander was not guilty of "the most wicked kinds of criminal activity" and should have made that clear to the Supreme Court on the appeal. Had the government done so, Mr. Hafemann submits, the stay of any further proceedings against Mr. Oberlander would have been approved by the Supreme Court.
 In sum, Mr. Hafemann maintains that any reasonable reading of the judgment of the Supreme Court leads to the conclusion that it would have approved a stay of proceedings as against Mr. Oberlander if the Court was aware the only evidence against him was that he "probably fudged" his response to a visa control officer regarding his participation as a "conscripted member" with Einsatzkommando 10A with no personal participation in any war crimes or crimes against humanity.
 Mr. Hafemann's submission has merit. However, I am very mindful of the dynamics of any judicial proceeding. The information before me is less than clear that Government counsel were aware they could not, from the onset of these proceedings, establish the principal allegations against Mr. Oberlander as contained in the application to revoke citizenship. It may well be that Government counsel were privy to evidence or potential evidence that might establish Mr. Oberlander's complicity in war crimes as principally alleged in the application to revoke citizenship.
 If this were the only basis for the application I would decline jurisdiction. However, for reasons which I shall give presently, I shall permit Mr. Hafemann to address this issue and present proper evidence of Government counsels' misconduct if he is able.
 Mr. Hafemann alleges an infringement of Mr. Oberlander's right guaranteed by s. 15 of the Charter, to equality before and under the law, and equal protection and benefit of the law. As I understand his submission, Mr. Oberlander was selected by the Minister of Citizenship and Immigration based on his race, national or ethnic origin, or based on some other category, while others, apparently similarly situated, have not been targeted by the Minister for revocation of citizenship. In my view, this submission has so little merit that I will not entertain submissions with respect to a s. 15 infringement on a return of the application. Even if there are other persons who might be subject to an application for revocation of citizenship, based on government policy, in my view, the Ministry of Citizenship and Immigration is free to choose among them given the Minister's available resources. The Ministry is not required to "target" all citizens who might technically be subject to a revocation of citizenship and subsequently a deportation order.
 I decline as well to hear any submissions as proposed in the notice of application with respect to s. 12 of the Charter, which provides that everyone has the right not to be subjected to cruel and unusual treatment or punishment. In the circumstances of this case, if the position of the government is correct, then the revocation of Mr. Oblerlander's citizenship would not in my view amount to cruel and unusual treatment or punishment. Whether his deportation following such revocation might amount to cruel and unusual treatment is an issue best determined by the Board Members at an appropriate hearing, with judicial review by the Federal Court.
 As part of the relief sought by his application, Mr. Oberlander requests a declaration that, having acquired domicile in Canada, he cannot be ordered deported. I decline to assume jurisdiction with respect to this issue. It focuses directly on the proper interpretation and application of the Immigration and Refugee Protection Act and its predecessor. It is an issue best dealt with by the Immigration and Refugee Board and by the Federal Court.
 Neither will I hear any submissions with respect to an alleged infringement of Mr. Oberlander's rights as guaranteed by s. 11 of the Charter. While I am of the view that an application for revocation of citizenship is a most serious matter, I accept the jurisprudence supporting the proposition that an application for revocation of citizenship does not amount to being "charged with an offence". Therefore, the specific rights enshrined in s. 11 are not triggered. There is no merit to this allegation and I decline to assume jurisdiction to consider the issue.
 I give little weight to Mr. Oberlander's submission that his right to be secure against unreasonable search or seizure enshrined in s. 8 of the Charter has been violated by the proceedings. Mr. Hafemann did not vigorously argue this issue on the application to date and it may well be that I do not fully understand Mr. Oberlander's position. I have a sense, however, that he is particularly concerned about the disclosure and discovery procedure directed by Noël J. It seems to me that if that is his position, it is more appropriately dealt with in a consideration of s. 7 of the Charter. If there is some aspect of "search or seizure" that I have misunderstood, then I will permit Mr. Hafemann to clarify and, if necessary, explore the issue. Mr. Hafemann should make sure, if he wishes to do so, to fully clarify his position in a factum to be prepared and served well prior to a return of this application.
 The alleged infringement of Mr. Oberlander's rights guaranteed by s. 6 of the Charter is essentially a consequence of the determination by the Governor in Council to revoke Mr. Oberlander's citizenship. These consequences, in my view, are best dealt with in the context of s. 7 of the Charter. If Mr. Oberlander's rights as a citizen have been properly revoked in accordance with the principles of fundamental justice as enshrined in s. 7, then it is only appropriate that he lose the right guaranteed to citizens in accordance with s. 6 (and other rights accorded every citizen of Canada).
 Mr. Oberlander submits that he is entitled to relief from the Superior Court as a result of delay on the part of the Government in seeking revocation of his citizenship, which delay amounts to an abuse of process. Mr. Oberlander also relies on the equitable doctrine of laches, the application of which doctrine is not available to the Federal Court. Mr. Oberlander's delay argument is premised on the fact that in 1970 he was interviewed by German authorities in Toronto, with the apparent co-operation of the Canadian Government. The principal target of that inquiry may have been another person but Mr. Oberlander's wartime activities were apparently canvassed and would, he submits have been made known to the Canadian Government.
 Mr. Oberlander further submits that in 1985 or 1986 the Deschenes Commission apparently identified Mr. Oberlander as a person whose entry into Canada might be subject to question. Notwithstanding these events which might have provoked a further inquiry and triggered an application to revoke citizenship, nothing was done by the Government until 1995. This delay, Mr. Oberlander argues, has caused a significant prejudice to him. Had the Government acted in a more timely fashion, direct evidence available through witnesses or specific documents might have been available which would clear him of any suspicion regarding the circumstances of his entry to Canada.
 Mr. MacIntosh submits that there was no obligation on the part of the Government to apply for revocation of his citizenship before it did in 1995 and points out that the passage of years may have also inured to the prejudice of the Government.
 Since I have determined there are other issues of sufficient importance to justify this Court's assuming carriage of the application, I will permit counsel to address the issue of "delay" should they choose to do so.
 I now come to the principal issue which, in my view, merits determination by this court, whether the process whereby Mr. Oberlander was deprived of his citizenship, had his citizenship revoked, was in accordance with the principals of fundamental justice as guaranteed by s. 7 of the Charter of Rights.
 There can be no question that the revocation of citizenship, particularly in the circumstances of this case, triggers s. 7 of the Charter. A revocation of citizenship engages both liberty interests and security of the person. I cite two easy examples. Prior to the revocation of his citizenship, Mr. Oberlander had full mobility rights, as guaranteed by s. 6 of the Charter. He no longer has these rights. Neither does he have the right to vote in an election or to run for office, as enshrined in s. 3. I need not go on with the impact that the revocation of his citizenship has had upon both Mr. Oberlander and his family. If revocation of his citizenship is justified, then the consequences must be justified. However, if revocation of his citizenship was not justified, was not in accordance with the principles of fundamental justice, then the impact upon his liberty and his security cannot be tolerated. In sum, I can think of no consequence, apart from a sentence of several years imprisonment in a penitentiary, which would be more significant to a responsible citizen than the loss of that citizenship. Mr. Oberlander, by the decision of the Governor in Council, has been rendered in effect a stateless person. When he was granted his Canadian citizenship in 1960 he was required to renounce his German citizenship. He has spent virtually the whole of his adult life as a citizen of Canada. Now he can no longer rely upon the benefits of citizenship. Mr. MacIntosh, on behalf of the Government, has been very candid in stating that the intention of the Minister of Citizenship and Immigration is to seek Mr. Oberlander's deportation. Where he might be deported to, where he might be accepted, is still somewhat unclear.
 Given the consequences visited upon Mr. Oberlander by the loss of his citizenship, it is clear that the revocation of his citizenship must accord with the principles of fundamental justice. What then was this process?
 The procedure for revocation of citizenship is set out in s. 10 and s. 18 of the Citizenship Act. These sections provides as follows:
"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...
as of such date as may be fixed by order of the Governor in Counsel 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."
 Mr. Oberlander does not submit that the above provisions themselves infringe his rights guaranteed by s. 7 of the Charter. It is conceded that s. 10 and s. 18 provide a structure within which, by custom and practice, a process may occur for the revocation of citizenship which is in accordance with the principles of fundamental justice. Mr. Oberlander maintains, however, that what happened in this case was not in accordance with those principles.
 As noted in the chronology of events set out at the beginning on this ruling, when he received the Minister's notice of intention to revoke his citizenship, Mr. Oberlander did request that the Minister refer his case to the court. That reference was held before Mr. Justice MacKay of the trial division of the Federal Court. After considerable evidence was called on the reference, Mr. Justice MacKay released his decision on February 28, 2000.
 Largely on the basis of that decision, the Minister of Citizenship and Immigration then submitted a report to the Governor in Council in accordance with s. 10 of the Act. This report may also be referred to as the Minister's submissions to the Governor in Council. It can be fairly said that the Minister strongly recommended to the Governor in Council the revocation of Mr. Oberlander's citizenship. Though not specifically required to do so by s. 10, the Minister invited Mr. Oberlander to provide written submissions to the Governor in Council should he choose to do so. Mr. Oberlander, or counsel on his behalf, did indeed provide extensive written submissions. He was accorded no right of personal appearance before the Governor in Council, the tribunal that was to determine whether his citizenship would be revoked. The Minister of Citizenship and Immigration, it seems, did appear before the tribunal and indeed may have been herself a member of the tribunal.
 I am obliged to Mr. Nicholas d'Ombrain, an acknowledged expert in the theory and practice of Westminster style Ministerial government. By his affidavit sworn January 30, 2002 and subsequent cross-examination on that affidavit, Mr. D'Ombrain provides some insight into the constitution and functioning of the Governor in Council.
 At the risk of oversimplifying the issue, it appears that the Governor in Council in fact is the Cabinet or, more specifically, a committee of Cabinet, that in this case met as a tribunal to determine Mr. Oberlander's fate. Convention apparently requires a quorum of four Cabinet Ministers. After coming to a decision, the members of the Cabinet Committee, or perhaps a senior member, signed the draft Order in Council, which was then presented to the Governor General for her signature. This draft order, which became the final Order in Council (see application record, Exhibit Brief Volume 3A, tab 2) was in fact prepared by the Minister of Citizen of Immigration and presented to the Governor in Council. (I might note in passing that there is no evidence as to whose signature appears on the Order in Council revoking Mr. Oberlander's citizenship as found in the application record.)
 What actually went on before the Governor in Council remains largely unknown and constitutes one of the principal focuses of concern for Mr. Oberlander. In his application for judicial review of the Order of the Governor in Council, Mr. Oberlander made a request pursuant to rule 317 to be provided with certain material (see the affidavit of Lani Vanderveen, sworn December 4, 2003). Mr. Oberlander requested "the applicant's file containing all the particulars concerning the revocation of citizenship application by the Ministry of Citizenship that was presented to the Governor in Council, the list of cabinet members present and participating in the decision to revoke the applicant's citizenship and the reasons of the Governor in Council for the issuance of the Order in Council". Mr. Oberlander received a response from Michèle Currie, identified as the Co-ordinator of the Special Committee of Council, Regulatory Affairs and Orders in Council Secretariat, Privy Council office. That response is found as Exhibit B to the affidavit of Lani Vanderveen. Ms. Currie's response was in part:
"3. The applicant's file that was presented to the Governor in Council in relation to his decision of July 12, 2001 consisted solely of the 'report to the Governor General in Council from the Minister of Citizenship and Immigration concerning the citizenship of Helmut Oberlander" (the Minister's report).
4. I am informed that this Minister's report has already been sent to the applicant in part on July 4, 2001 (the bulk of the report) and in part on July 23, 2001 (the Order). Consequently, the Minister's report is in the possession of the applicant.
5. Any material relating to draft legislation or the attendance of Ministers at meetings at the Governor in Council is protected as a Cabinet confidence.
6. Reasons are set out in the Order and the Minister's report."
 It may be noted that no reference is made to Mr. Oberlander's written submissions being presented to the Governor in Council (see para. 3 above). I prefer to believe that these submissions would have been presented to the Governor in Council and the response of Michèle Currie is simply in error. That issue may yet be further clarified by counsel.
 Arguably of greater significance, no information is given with respect to which Ministers or how many Ministers constituted the tribunal. Indeed, the material presented to me on the "threshold" issue with respect to the application permits the inference that the Minister of Citizenship and Immigration, and perhaps the Attorney General of Canada as well, sat as members of the Governor in Council in deciding whether to revoke Mr. Oberlander's citizenship. If these Ministers did indeed "preside" as part of the tribunal, as members of the Governor in Council deciding the issue, then they were involved in a clear conflict of interest. The court to date has been given no assurances either way.
 Finally, reasons for the decision of the Governor in Council to revoke Mr. Oberlander's citizenship are deemed to be set out in the Minister's report (recommendation) and the order itself, which was drafted by the Minister. Mr. Hafemann, on behalf of Mr. Oberlander, submits that a decision revoking citizenship is so serious, so significant, that it calls for cogent and detailed reasons supporting the decision, that simply adopting a recommendation and/or a draft order submitted by one of the parties is not in accordance with fundamental justice. Mr. MacIntosh on behalf of the Government adopts a different position. He points to jurisprudence which stands for the proposition that written submissions or a report may, depending upon the circumstances, constitutes sufficient reasons for a decision of a tribunal to accord with the principles of fundamental justice.
 To summarize Mr. Oberlander's position, he submits that his citizenship was revoked by a process that fell woefully short of according with the principles of fundamental justice, that he was denied fairness and due process. He points to his inability to be present before the tribunal (the Governor in Council) or to be represented by counsel, notwithstanding the Government's active participation in that hearing which may have included one or both his opponents in this proceeding presiding as members of the Governor in Council to decide his fate. Mr. Oberlander further points to the complete lack of record of the hearing before the Governor in Council and the lack of cogent, detailed reasons for the decision. He submits that the adoption of the report of the Minister and her draft Order constitutes nothing more than a "rubber stamp" of the position taken by the Minister.
 In sum, Mr. Hafemann submits that the proceeding before the Governor in Council was held in complete secrecy and is an affront to any proper concept of fundamental justice. Mr. Hafemann would argue that the principle of cabinet confidentiality may be very valid when applied to other issues put before the Governor in Council, such as debate over a bill. However, cabinet confidentiality amounting to complete secrecy has no place in a proceeding resulting in revocation of citizenship when fundamental justice requires an open hearing, at least open to the citizen whose status is in jeopardy.
 Mr. MacIntosh, on behalf of the Government, submits that the process accorded to Mr. Oberlander was sufficiently fair to accord with the principles of fundamental justice. Mr. Oberlander was permitted to make written submissions to the Governor in Council, and that is all that the principles of due process or fundamental justice require. The report of the Minister and the Order in Council itself constitute adequate reasons for the decision taken by the Governor in Council and indeed rationally support the decision to revoke Mr. Oberlander's citizenship. As found by Mr. Justice Martineau, the Governor in Council acted within its mandate and its decision was not patently unreasonable. Mr. MacIntosh would argue as well that the principle of Cabinet confidentially as an integral part of Parliamentary Government takes priority over any right of personal appearance before the tribunal or indeed any right to know the identity of the tribunal.
 More than any other issue raised by Mr. Oberlander, his concern over the process before the Governor in Council and whether such process was in accordance with the principles of fundamental justice requires determination by this Court. I would emphasize again that I make no comment as to the strength of the position proposed by Mr. Oberlander or by the Government. I simply conclude that these issues have sufficient merit that they require determination by the court. These issues have not been dealt with by any other court and it is doubtful whether they would be dealt with by the Federal Court of Appeal, which has an obligation to simply review the record of judicial review at first instance by Mr. Justice Martineau.
 For reasons enunciated above, I grant relief to the applicant, Helmut Oberlander, on the "threshold" issue with respect to his application. This Court will assume jurisdiction and carriage of the application on its merits with respect to certain of the issues raised, in accordance with my comments noted above. I as well grant the principal relief Mr. Oberlander seeks with respect to his motion and direct an interim stay against the continuation of the inquiry before the Immigration and Refugee Board (Adjudication Division) pending disposition of the application on its merits. Applying the traditional test to determine whether a stay is appropriate, I conclude that there are serious issues to be tried by the application and have already determined that the application has sufficient merit to justify this Court's assuming carriage of the application. I also conclude that Mr. Oberlander would be at risk of suffering irreparable harm if the inquiry were to continue before the issues raised by the application are dealt with. As for the balance of convenience (or, I think a more appropriate term, balance of prejudice), in my view, the application of this test clearly favours the granting of a stay. The Government will suffer no prejudice if the inquiry is further delayed pending resolution of the application. Indeed, any decision rendered on the inquiry might well be rendered moot by ruling or rulings on the application. If this Court rules against Mr. Oberlander's position on the application, the inquiry can then continue and all that will have been lost is a little more time (which seems of no significance given the time already occupied by these proceedings). If the Court rules in favour of Mr. Oberlander on the application and sets aside the revocation of his citizenship, then any time spent on the immigration inquiry will have been a total waste. As matter of common sense therefore I direct a stay of the inquiry pending disposition of the application. In the result, I dismiss the Government's motion for a stay of Mr. Oberlander's motion and application.
 I therefore direct that counsel will communicate with one another and with the trial co-ordinator at Kitchener to arrange an appropriate date and a number of days for the hearing of the application on its merits. Counsel for the parties shall each prepare and serve, in a timely fashion, a comprehensive factum setting out the issues to be determined by the Court, together with a reference to the evidence they intend to rely upon and the jurisprudence supporting their respective positions. Any new jurisprudence (not already filed with the court) which the parties intend to rely upon shall be communicated to the opposite party or parties and may be filed with the court prior to a hearing of the application.
 The parties are reminded of the restriction on admissibility of hearsay information contained in an affidavit filed on an application. In accordance with Rule 39.01(5), some of the "material" filed to date does not comply with the rule. If the parties wish me to consider such information as evidence, an affidavit as to personal knowledge is necessary with respect to any facts that are contentious. If the parties intend to file further affidavits on the application, they shall do so in a timely fashion, permitting, if necessary, cross-examinations on such affidavits.
 If the parties intend to seek leave of this Court to call viva voce evidence on the application in accordance with Rule 39.03(4), they shall so advise opposite party or parties in a timely fashion.
 The parties shall agree on time lines with respect to the above matters. If they are unable to agree, then they may seek further directions from this Court.
 Costs are reserved to a hearing of the application.
R.D. REILLY J.
DATE: January 6, 2004