Date: 19991207
Docket: A-127-99
CORAM: STRAYER J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
VLADIMIR KATRIUK
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
| Heard at Toronto, Ontario, on |
Monday, December 6 and Tuesday, December 7, 1999
Judgment Delivered Orally from the Bench at Toronto, Ontario
on Tuesday, December 7, 1999
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 19991207
Docket: A-127-99
CORAM: STRAYER J.A.
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
VLADIMIR KATRIUK
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
on December 7, 1999)
STRAYER J.A.:
I. The appellant has raised several issues in this appeal.
Appeal from refusal of stay
II. We have considered carefully the reasons of Nadon J. for refusing the stay of the proceedings being conducted by him under section 18 of the Citizenship Act, and can find no reviewable error in the exercise of his discretion. The appellant complains that the learned judge did not in his reasons deal with the appellant"s argument based on section 15 of the Charter in respect of alleged discrimination against the appellant resulting from his being proceeded against civilly, not criminally. It would not be surprising if the trial judge thought comment on this argument to be unnecessary. Further, it is not necessary that a judge specifically recite all the reasons for his decision. In any event, we can see no error of law in the implicit rejection by the trial judge of this proposition. In spite of careful questioning of counsel in the hearing before us we were unable to identify any class of persons to which the appellant belongs which would qualify as analogous to the categories of persons specifically protected by subsection 15(1) of the Charter.
Right of appeal and appeal from a decision under section 18.
III. We have concluded that subsection 18(3) of the Citizenship Act effectively precludes any appeal from the decision of Nadon J. that the appellant was not lawfully admitted to Canada for permanent residence because he did not answer certain questions truthfully or failed to disclose material circumstances prior to his admission.
IV. Subsection 18(1) authorizes a reference to the Court of such an issue and a decision thereon by the Court, and subsection 18(3) provides that:
| A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom |
This clearly precludes an appeal unless, as the appellant argues, subsection 18(3) is invalid because it is contrary to sections 7 or 15 of the Charter. With respect to section 7, this Court has held in Luitjens v. Secretary of State1 that a decision under subsection 18(1) of the Citizenship Act, that a person has wrongly obtained citizenship, does not engage the guarantees of section 7. This is because such a decision is only a preliminary finding which may later form the basis for a decision by the Governor in Council to revoke his citizenship, and does not of itself affect life, liberty, or security of the person. We understand the Supreme Court of Canada to have given this decision general approval in its subsequent decision in Tobiass, et al v. Minister of Citizenship and Immigration.2 While that case involved the appeal of a stay, not of a decision under subsection 18(1), the Court discussed subsection 18(3) and stated:
| No doubt Parliament may validly limit the jurisdiction of the Federal Court of Appeal in this manner.3 |
The Supreme Court also endorsed the view of this court that a decision under section 18 was not a final judgment in contrast to a stay which is a final judgment.4 Further, it recognized that there are legitimate policy reasons for Parliament to limit appeals from interlocutory decisions.5
V. Applying the jurisprudence in Luitjens, as we are obliged to do in the absence of extraordinary circumstances, we conclude that subsection 18(3) does not conflict with section 7 of the Charter, even if section 7 were taken to guarantee a right of appeal.
VI. The appellant also has invoked subsection 15(1) of the Charter, arguing that subsection 18(3) discriminates unconstitutionally against persons of his class. Again his counsel has not been able to define to our satisfaction any prohibited ground of discrimination involved which would be analogous to the grounds set out in subsection 15(1).
Loss of jurisdiction through evidentiary error
VII. Counsel for the appellant belatedly argued at the hearing before us that Nadon J. had lost jurisdiction in the matter by relying in his factual findings on a document that was not in evidence. In his view such alleged loss of jurisdiction would cause the subsequent decision to fall outside the meaning of "decision" as referred to in subsection 18(1) which by subsection 18(3) is protected from appeal.
VIII. Counsel was unable to suggest how, procedurally, such an error could be brought before us on appeal. Apart from that, however, we do not accept that an erroneous finding of fact based on a misapprehension of what is in evidence could result in a loss by a superior court judge of jurisdiction.6 At best it would amount to an error in the exercise of jurisdiction. We therefore did not hear counsel on the details of this argument as to whether there was in fact erroneous reliance on a document not in evidence.
Conclusion on right of appeal
IX. There is therefore no right of appeal and we will not hear argument on the merits of the appeal.
Judicial Review of the decision under section 18 of the Citizenship Act
X. The appellant has argued that even if there is no right of appeal there is a right to seek judicial review of a decision taken under section 18, at least where the proceedings before the Trial Division were started under the old rules of the Federal Court. (The new rules which came into force in April, 1998 treat such proceedings as an action). We find no merit in this argument. This procedure has, since the statute of 1974-75-76 provided specifically for the referral of the case to "the Court"7 and subsection 18(3) refers to the "decision of the Court" not being subject to appeal. There is no provision in the Federal Court Act allowing for judicial review of a judge acting as the Court under section 18 of the Citizenship Act, and at common law there would be no judicial review of a decision of a superior court judge sitting as a Court.
Disposition
XI. The appeal will therefore be dismissed with costs.
"B. L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKETS: A-127-99
| STYLE OF CAUSE: VLADIMIR KATRIUK |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MONDAY-TUESDAY,
DECEMBER 6-7, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: STRAYER J.A. |
Delivered at Toronto, Ontario
on Tuesday, December 7, 1999
APPEARANCES: Mr. Orest H.T. Rudzik
Mr. Nestor I.L. Woychyshyn
| For the Appellant |
Mr. Lucas
| For the Respondent |
| SOLICITORS OF RECORD: Orest H.T. Rudzik |
Nestor I.L. Woychyshyn
| Barristers & Solicitors |
| 212-2323 Bloor St. West |
Toronto, Ontario
| M6S 4W1 |
| For the Appellant |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 19991207
Docket: A-127-99
BETWEEN:
| VLADIMIR KATRIUK |
Appellant
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR JUDGMENT |
__________________
1 (1992) 9 C.R.R. (2d) 149 at 152.
6 See e.g. A.G. Que. v. Cohen [1979] 2 S.C.R. 305; R. v. Wilson (1995) N.S.R. (2d) para. 6.