Federal Court of Appeal Decisions

                                                                                                                                            Date: 20011129

                                                                                                                                        Docket: A-665-01

                                                                                                                Neutral citation: 2001 FCA 373

CORAM:        STRAYER J.A.

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                                                                                                                        (Plaintiff)

                                                                                 and

                                                                       JACOB FAST

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

STRAYER J.A.

[1]                 This is a motion for a stay of a trial under section 18 of the Citizenship Act which was scheduled to start the day after the hearing of this motion. The stay was sought pending an appeal being heard in this Court from the decision of the trial judge, Pelletier J. who had dismissed a motion for a stay of the trial. For the reasons which follow I dismissed the motion.

[2]                 With respect to the first criterion to be considered on a stay application, that of whether there is a serious issue as to the correctness of the decision of Pelletier J., I find none to be raised. The learned trial judge considered himself to be bound by previous decisions in this Court to the effect that a proceeding under section 18 does not involve rights in section 7 of the Charter because it involves only findings of fact and no decisions that determine rights. This has been decided on at least three occasions by this Court: (see Canada v. Luitjens (1992), 142 NR 173; Canada v. Katriuk (1999), 252 NR 68; and Canada v. Obadzinsky 2001 FCA 158, [2001] FCJ No. 797). The Supreme Court has quoted with approval this Court's analysis of the nature of section 18 proceedings (see Canada v. Tobiass [1997 ] 3 SCR 391 at 413) and refused leave to appeal in the Katriuk case ([2000] SCCA No. 86). The trial judge correctly found himself to be bound by the jurisprudence as am I. Stare decisis is the normal rule and is itself one of the "basic tenets" of our legal system (thus an element of "fundamental justice") allowing Canadians some certainty and predictability in the law as well as some efficiency in the administration of their system of justice.

[3]                 Apart from the section 7 issue the applicant herein has demonstrated no reviewable error in the trial judge's findings of fact or law or exercise of discretion which would justify me in finding that a serious issue is raised.

[4]                 I am not persuaded that the applicant will suffer any irreparable harm by having the facts surrounding his acquisition of Canadian citizenship examined in a court of law -- at least no harm that Parliament has not validly provided for.

[5]                 As to the balance of convenience, the timing of this application, if it were to result in a stay, would bring great inconvenience to the respondent. The record shows that on February 7, 2001 counsel for the appellant, after having received a psychiatrist's report, advised the case management judge that because of his client's mental condition he would be applying for a stay of the trial. Nevertheless matters were allowed to proceed and on March 7, 2001 the case management judge directed that the trial would proceed in November and December. This was made more precise in an order of April 19, 2001 that the trial would proceed on November 19, 2001. Subsequently it was postponed to November 28, 2001. But it was not until October 9, 2001 that a motion was filed in the Trial Division for a stay of the trial, mainly on the basis of the psychiatrist's report. This motion could not be heard until early November and Pelletier J .issued an order dismissing it on November 19, 2001. On November 26, 2001 the applicant then filed a motion in this Court to be heard on November 27, for a stay (pending appeal of Pelletier J's order) of the lengthy trial that was to begin the next day. According to evidence filed by the respondent on this motion, several witnesses have been arranged to come from other countries for this trial. It is simply unacceptable that the applicant's counsel, knowing as early as February, 2001 that they wanted to bring a motion for a stay based on his client's mental condition, should not in fact file such a motion until October 9, 2001, a few weeks before trial and at a time when a stay order could maximize the disruption of the trial process and the wasting of everyone's resources including those of the respondent and of this Court. The balance of convenience is certainly not in favour of granting the stay. Ex post facto explanations as to why further developments during the summer were necessary before a motion could be brought are to me completely unconvincing: counsel had already announced in February, 2001 his grounds for a motion and the further information allegedly gleaned over the summer appears to me to be in no way novel or critical for the motion.

                                                                                                                                           (s) "B.L. Strayer"          

J.A.