Zundel v. the Attorney General of Canada, the Minister of Citizenship and Immigration, and the Canadian Security Intelligence Service

Date: 19990618

Docket: T-762-99

BETWEEN:

ERNST ZUNDEL

Applicant

and

THE ATTORNEY GENERAL OF CANADA,

THE MINISTER OF CITIZENSHIP AND IMMIGRATION and

THE CANADIAN SECURITY INTELLIGENCE SERVICE

Respondents

REASONS FOR ORDER

McKEOWN J.

[1] The Attorney General of Canada has moved to quash the application for judicial review on the grounds that the decision in question was really the Minister's Report of August 2nd, 1995, and not the letter dated March 31, 1999, whereby the Chairman of the Security Intelligence Review Committee (the "SIRC") notified counsel for both parties that the Committee would continue with its investigation of the Ministerial Report.

[2] Mr. Grant, the Chairman, raised certain questions in his letter to the Minister about the Minister's Report. The Chairman then wrote to both parties' counsel with respect to his concerns and received responses. Mr. Zundel's counsel stated that the matters raised by the Chairman meant that the Committee was without jurisdiction to launch an inquiry under the Immigration Act against Mr. Zundel based on the Ministerial Report of August 2nd, 1995. However, counsel for the Attorney General pointed out that under sub-section 19(4) of the Citizenship Act, the Committee is bound to investigate the grounds upon which the report under sub-section 19(2) is based. The Committee has no discretion and must proceed to investigate. Upon completing this investigation, it must under sub-section 19(6) make its report to the Governor in Council. This is so, according to the Attorney General, even if the Committee has concerns about the adequacy of the basis on which the Minister's opinion was formed.

[3] The Chairman decided to proceed. However, he made the following comments at p. 3 of his March 31, 1999 letter:

There would appear to be two possible legal results of the wording of the Ministerial Report. The first is that the Minister's action in making the Ministerial Report was ultra vires and accordingly the Report cannot be the basis of a statutory duty on the part of the Committee. The second is that the Committee can, and indeed must investigate the Ministerial Report (albeit restricting its investigation to statutorily relevant grounds) and report to the Governor in Council with respect to all matters relating to the investigation, including any concerns related to the wording of the Report.

He went on to agree with the Attorney General that the second conclusion was the correct one and that the Committee should continue its investigation of the Ministerial Report.

[4] This is not a question of jurisdictional error. The Minister's Report could have been the subject of an application for judicial review within 30 days of the report's release on August 2nd, 1995. Mr. Zundel did not seek an extension of time to file this application for judicial review. In my view, the present application can be decided by looking at the grounds for the application for judicial review as filed by Mr. Zundel on April 29, 1999: in paragraph (a) of the grounds, there is a suggestion that the Minister has breached his statutory duty; paragraphs (b), (c) and (d) are really an elaboration of the reasons why the Minister's Report is ultra vires; paragraph (e) is really a complaint that the Chair has decided not to consider mere association or mere membership as sufficient to meet s. 2(c) of the Canadian Security Intelligence Service Act. In my view, this statement advising the parties in advance what he would not consider was not a decision; it was merely to narrow the issues so that the parties would know that submissions were not required on this point. I would have thought that Mr. Zundel could take some comfort in the Chair's remarks on this point.

[5] We are thus left with a challenge to the Minister's Report and no challenge to the decision of the SIRC. If Mr. Zundel wished to seek judicial review of the Minister's report, he was required to do so within the 30 day period following the report's release on August 2nd, 1995, as prescribed in s. 18.1(2) of the Federal Court Act. He cannot now attack the Minister's report by way of judicial review of the SIRC Chair's preliminary comments to counsel. Accordingly, the application for judicial review, dated April 29, 1999, is quashed.

William P. McKeown

JUDGE

OTTAWA, Ontario

June 18, 1999.