Federal Court of Appeal Decisions

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     STONE J.A.

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

     REASONS FOR ORDER     

     (Delivered from the Bench, at Toronto, Ontario,

     on Tuesday, December 10, 1996)

PRATTE J.A.

     The respondents have presented three preliminary motions that must now be disposed of.

     The first one of these motions seeks directions as to whether the Dubin Report can be referred to in the argument of the appeals even though it is not part of the appeal case. It does not raise any real issue since counsel now agree that the Report may not be referred to as evidence of the facts it relates but may be invoked by counsel in argument in so far as it expresses the opinion of its author on strictly legal issues.

     The second motion seeks to amend the record on which the respondents' motion to quash the appeal will be decided by adding three documents, the affidavit of Randolph Gillen and two newspaper editorials, found at tabs 7, 8 and 9 of the affidavit of James Foord, sworn on December 3, 1996. The motion will be granted since, contrary to what was argued by Mr. Binnie, the three documents cannot be said to be irrelevant to the issues raised by the motion to quash.

     The third motion seeks the production of the documentary evidence referred to in the Dubin Report as well as the inclusion of that evidence and of the Report in the appeal case.

     It is clear, in our view, that the Report itself should not be added to the case even though it was prepared after the date of the judgment appealed from.

     As to the documentary evidence referred to in the Report, the respondents say that it should be produced and included in the appeal case since, in their opinion, that evidence is relevant, credible, practically conclusive of issues in the appeal and could not reasonably be discovered by them before the end of the proceedings in first instance. We do not agree.

     The facts surrounding Mr. Thompson's visit to the Chief Justice and the Chief Justice's intervention in this matter could easily have been discovered before the end of the proceedings in the Trial Division had counsel for the respondents chosen to cross-examine Mr. Thompson pursuant to Rule 319(4) of the Federal Court Rules.

     There is no merit in the respondents' contention that their decision not to examine Mr. Thompson resulted from the fact that they had been induced into error by the appellant's counsel and that, in any event, Mr. Thompson could have invoked the solicitor and client privilege to refuse to answer their questions. True, the appellant's counsel did not answer all the questions that had been put to him, but he, in no way, misled the respondents.

     As to the issue of privilege, it is trite law that a solicitor cannot be compelled to disclose communications between himself and his client for the purpose of giving legal advice. This would no doubt include communications with respect to the litigation involved in these proceedings. On the other hand, it would not extend to the personal relationship of Mr. Thompson to the Chief Justice nor to the circumstances surrounding Mr. Thompson's personal decision to approach the Chief Justice with respect to these and related cases. In our view, had Mr. Thompson been called to testify before the judge of first instance, as counsel for the respondents at one time contemplated doing, he could not have refused to answer questions or to produce documents with respect to these particular matters. The record shows that the respondents' counsel chose to proceed with the motion to stay on the sole evidentiary basis of the correspondence between them and counsel for the appellant and between Mr. Thompson and the Chief Justice. That, of course, was a matter for them to decide, but they cannot now be heard to argue that their election was based on a belief that Mr. Thompson would have been entitled to claim solicitor and client privilege.

     Finally, we doubt that the evidence in question can be said to be practically decisive of any of the issues raised in the appeal.

     The motion for production of evidence and for the variation of the appeal case will therefore be dismissed.

     "Louis Pratte"

     J.A.

CORAM:      PRATTE J.A.

     MARCEAU J.A.

     STONE J.A.

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

Motions heard at Toronto, Ontario, on Monday and Tuesday, December 9 and 10, 1996.

Order rendered from the Bench on Tuesday, December 10, 1996.

REASONS FOR ORDER BY:      PRATTE J.A.

     IN THE FEDERAL COURT OF APPEAL

IN THE MATTER OF AN APPEAL FROM THE TRIAL DIVISION

IN THE MATTER OF A STAY OF PROCEEDINGS

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 as amended and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

     A-560-96

     (T-938-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     JOHANN DUECK

     Respondent

     (Respondent)

    

     A-561-96

     (T-866-95)

BETWEEN:

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Appellant

     (Applicant)

     - and -

     HELMUT OBERLANDER

     Respondent

     (Respondent)

     REASONS FOR ORDER