Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391

Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391

Erichs Tobiass Appellant

v.

The Minister of Citizenship and Immigration Respondent

and between

Johann Dueck Appellant

v.

The Minister of Citizenship and Immigration Respondent

and between

Helmut Oberlander Appellant

v.

The Minister of Citizenship and Immigration Respondent

and

The Canadian Jewish Congress Intervener

Indexed as: Canada (Minister of Citizenship and Immigration) v. Tobiass

File No.: 25811.

1997: June 26; 1997: September 25.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the federal court of appeal

Courts ‑‑ Jurisdiction ‑‑ Appeals ‑‑ Federal Court of Appeal ‑‑ Federal Court Trial Division staying citizenship revocation proceedings ‑‑ Whether stay of proceedings a decision made under s. 18(1) of Citizenship Act ‑‑ Whether decision to stay proceedings can be appealed to Federal Court of Appeal ‑‑ Citizenship Act, R.S.C., 1985, c. C‑29, s. 18(1), (3) ‑‑ Federal Court Act, R.S.C., 1985, c. F‑7, s. 27(1).

Courts ‑‑ Judges ‑‑ Judicial independence ‑‑ Government official meeting with Chief Justice of Federal Court to express concern about slow progress of citizenship revocation proceedings ‑‑ Whether meeting between government official and chief justice interfered with judicial independence ‑‑ If so, whether stay of proceedings appropriate remedy.

Civil procedure ‑‑ Remedies ‑‑ Stay of proceedings ‑‑ Meeting between government official and chief justice causing damage to appearance of judicial independence ‑‑ Whether stay of proceedings appropriate remedy.

In January 1995 the appellants received notices informing them that the respondent Minister intended to seek revocation of their Canadian citizenship on the ground that they had obtained it by failing to divulge to Canadian officials details of their involvement in atrocities committed during the Second World War. At the appellants’ request, the cases were referred to the Federal Court ‑‑ Trial Division. Numerous procedural disputes then arose. On December 12, 1995 counsel for one of the appellants argued for the whole day on the preliminary motions before the Associate Chief Justice. In January 1996 the court advised the parties that May 15 and 16 had been set aside for the completion of the argument. Counsel for the respondent wrote a letter to the court administrator, a copy of which he sent to counsel for the appellants, complaining in strong terms about the slow progress of the cases. Following a teleconference with the parties, the Associate Chief Justice confirmed that oral argument on the preliminary issues would take place on May 15 and 16, 1996. On March 1, T, the Assistant Deputy Attorney General in charge of civil litigation at the federal Department of Justice, met with the Chief Justice of the Federal Court. The two men discussed the scheduling of the appellants’ cases and later that day exchanged letters, neither of which was copied to any of the counsel for the appellants. In his letter to the Chief Justice, T referred to the fact that the Attorney General was being asked to consider taking a reference to the Supreme Court of Canada to determine some preliminary points of law primarily because the Trial Division was unable or unwilling to proceed with the cases expeditiously. In his reply, the Chief Justice stated that he had discussed T’s concerns with the Associate Chief Justice, and that both were prepared to take all reasonable steps to avoid such a reference. He added that the Associate Chief Justice said he had not fully appreciated “the urgency of dealing with these matters as expeditiously as the Government would like” until he had read T’s letter. However, now that he was aware of the Government’s concerns he would devote one week from May 15 to deal with the cases not only with respect to the preliminary points but also with respect to the merits. The respondent provided copies of these letters to the appellants. Counsel for the appellants advised the court that they would move for a stay of proceedings on the ground that T and the Chief Justice had interfered with the independence of the Associate Chief Justice. The Associate Chief Justice then recused himself. He directed that the appellants’ cases should go forward under a new judge. The appellants’ application for a stay of proceedings was granted. The Federal Court of Appeal, having decided that it had jurisdiction to consider the appeal, set aside the stay.

Held: The appeal should be dismissed.

The Federal Court of Appeal had jurisdiction to hear the Crown’s appeal in this case. The stay of proceedings ordered was not a decision made “under” s. 18(1) of the Citizenship Act. Section 18(1) refers to a very particular kind of decision: a decision as to whether a person “has obtained, retained, renounced or resumed citizenship” by false pretences. Whether s. 18(1) is interpreted narrowly as encompassing only the ultimate decision as to whether citizenship was obtained by false pretences, or more broadly to include the interlocutory decisions made in the context of a s. 18(1) hearing which are related to this determination, it is apparent that it does not encompass an order granting or denying a stay of proceedings. Section 18(3) of the Citizenship Act, which provides that no appeal lies from a decision of the Trial Division made under s. 18(1), thus does not apply. A decision allowing or denying a motion for a stay of proceedings is a decision made under s. 50 of the Federal Court Act and may be appealed according to the rules set out in s. 27 of that Act.

The appearance of judicial independence suffered significantly as a result of the meeting between T and the Chief Justice. The test for determining whether the appearance of judicial independence has been maintained is whether a reasonable observer would perceive that the court was able to conduct its business free from the interference of the government and of other judges. As a general rule of conduct, counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case. The meeting between T and the Chief Justice, at which counsel for the appellants were not present, violated this rule and was clearly inappropriate, despite the fact that the occasion for the meeting was a highly legitimate concern about the exceedingly slow progress of the cases. Again as a general rule, a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views. It was therefore clearly wrong, and seriously so, for the Chief Justice to speak to the Associate Chief Justice at the instance of T. While a chief justice is responsible for the expeditious progress of cases through his or her court and may under certain circumstances be obligated to take steps to correct tardiness, the actions of the Chief Justice here were in the nature of a response to a party rather than to a problem. Similarly, the Associate Chief Justice acted inappropriately by responding as he did to the Chief Justice’s intervention without the participation of counsel for the appellants. A reasonable observer apprised of the workings of the Federal Court and of all the circumstances would perceive that the Chief Justice and the Associate Chief Justice were improperly and unduly influenced by a senior officer of the Department of Justice. However, there is no persuasive evidence of bad faith on the part of any of those involved, nor is there any solid evidence that the independence of the judges in question was actually compromised.

An appellate court may not lightly interfere with a trial judge’s decision to grant or not to grant a stay of proceedings, which is a discretionary remedy. While a stay is usually sought to remedy some unfairness to the individual that has resulted from state misconduct, there is also a “residual category” of cases in which a stay may be warranted. This residual category comprises cases in which a prosecution is conducted in such an unfair or vexatious manner that it contravenes notions of justice and thus undermines the integrity of the judicial process. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. It must also be shown that no remedy other than a stay is reasonably crossed capable of removing this misconduct. As well, it may be necessary in some cases to balance the interests that would be served by granting a stay of proceedings against the interest that society has in having a final decision on the merits. This balancing process would not be appropriate in the case of an ongoing affront to judicial independence or of a particularly egregious interference, either of which would outweigh any interest society might have in continuing the proceedings. Neither of these circumstances is present here.

A stay of proceedings is not the appropriate remedy in these cases. First, there is no likelihood that the carrying forward of the cases will manifest, perpetuate or aggravate any abuse. Second, the lesser remedy of ordering the cases to go forward under the supervision of a different judge of the Trial Division without any direction or intervention from the Chief Justice or the Associate Chief Justice will suffice. Third, Canada’s interest in not giving shelter to those who concealed 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 by proceeding with the cases. The appropriate remedy here is to have the cases against the appellants go forward under the supervision of a judge of the Trial Division who has had nothing to do with the affairs that form the subject matter of this appeal. The judge appointed will ignore all directions previously given by the Associate Chief Justice or the Chief Justice in these cases. The Chief Justice and Associate Chief Justice should not have anything further to do with these cases.

Cases Cited

Referred to: Roberts v. Canada, 1989 CanLII 122 (SCC), [1989] 1 S.C.R. 322; ITO‑-International Terminal Operators Ltd. v. Miida Electronics Inc., 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054; McNamara Construction (Western) Ltd. v. The Queen, 1977 CanLII 13 (SCC), [1977] 2 S.C.R. 654; Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114; Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56; Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367; R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659; Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267; R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985; R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217; Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358; Attorney‑General v. Times Newspapers Ltd., [1973] 1 Q.B. 710.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 24(2).

Citizenship Act, R.S.C., 1985, c. C‑29, ss. 2 “Court”, 10, 18(1), (3).

Federal Court Act, R.S.C., 1985, c. F‑7, ss. 6(1), (3), 27(1) [am. 1990, c. 8, s. 7], 46, 50(1).

Federal Court Rules, C.R.C., c. 663, rr. 5, 450‑455, 461, 477, 900‑920, 1714‑1715.

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40.

Authors Cited

Canada. Parliament. House of Commons. Beauchesne’s Rules & Forms of the House of Commons of Canada, with Annotations, Comments and Precedents, 6th ed. By Alistair Fraser, W. F. Dawson and John A. Holtby. Toronto: Carswell, 1989.

Wilson, J. O. A Book for Judges. Ottawa: Canadian Judicial Council, 1980.

APPEAL from a judgment of the Federal Court of Appeal, 1997 CanLII 6328 (FCA), [1997] 1 F.C. 828, 142 D.L.R. (4th) 270, 208 N.R. 21, [1997] F.C.J. No. 2 (QL), setting aside a stay of proceedings entered by the Federal Court ‑‑ Trial Division, 1996 CanLII 4077 (FC), [1996] 2 F.C. 729, 116 F.T.R. 69, 41 Admin. L.R. (2d) 272, [1996] F.C.J. No. 865 (QL). Appeal dismissed.

Gesta J. Abols, for the appellant Tobiass.

Donald B. Bayne, for the appellant Dueck.

Michael Code, for the appellant Oberlander.

W. Ian C. Binnie, Q.C., for the respondent.

Ed Morgan, for the intervener.

The following is the judgment delivered by

//The Court//

1 The Court -- This appeal raises three principal questions. The first and threshold question is whether this Court has jurisdiction to hear an appeal from a decision of a judge of the Federal Court ‑‑ Trial Division to stay a citizenship revocation proceeding. The second question is whether certain events constituted an actual or apparent affront to judicial independence. The third question is whether, if there was any affront to judicial independence, a stay was, under the circumstances, the appropriate remedy.

I. Facts

2 The facts of this appeal present some difficulties. Much of the relevant evidence was known to Cullen J., who considered the appellants’ application at first instance. But other items of evidence emerged only recently, following an order of this Court dated May 5, 1997. The additional evidence was not considered at trial and so has not given rise to any findings of fact. It is accordingly for this Court to determine the weight that should be assigned to it.

A. The Evidence That Was Available to the Trial Division

3 The following was known to the Trial Division and to the Federal Court of Appeal. Both courts based their decisions entirely upon it.

4 On January 27, 1995, the Registrar of Canadian Citizenship sent Notices of Revocation to the appellants, Helmut Oberlander, Johann Dueck and Erichs Tobiass. The purpose of these notices was to inform the appellants that the Minister of Citizenship and Immigration (“the Minister”) intended to seek revocation of their Canadian citizenship on the ground that they had obtained it by failing to divulge to Canadian officials details of their involvement in atrocities committed during the Second World War. Mr. Oberlander, it was said, had concealed his “membership in the German Sicherheitspolizei und SD and Einsatzkommando 10A during the Second World War and [his] participation in the executions of civilians during that period of time”; Mr. Dueck his “membership in the Selidovka district (ralon) police in German occupied Ukraine during the period 1941 to 1943, and [his] participation in the executions of civilians and prisoners‑of‑war during that time”; and Mr. Tobiass his “membership in the lettische Sicherheitshilfspolizei (commonly known as the Arajs Kommando) subordinate to the German Sicherheitspolizei und SD during the period 1941 to 1943 in German occupied Latvia and [his] participation in the executions of civilians during that time and [his] membership in the Waffen SS during the period 1943 to 1945”.

5 As they were entitled to do under s. 18(1)(a) of the Citizenship Act, R.S.C., 1985, c. C-29, the appellants asked the Minister to refer their cases to the Federal Court ‑‑ Trial Division. By May 1, 1995, the Minister had referred all three cases to the court.

6 There then followed many procedural disputes. In May of 1995, the respondent sought directions from the court about the procedure to be followed and the appellants sought disclosure of the respondent’s case. On June 30, 1995, the respondent’s motions for directions came on for hearing before Jerome A.C.J. During the initial hearing, counsel for the appellants raised many preliminary issues. The Associate Chief Justice ordered the three cases joined for purposes of resolving the preliminary issues and he set a timetable for the filing of arguments in relation to them.

7 Throughout the summer of 1995, the appellants sought disclosure of documents that they judged to be relevant to their preliminary motions. In addition, they pressed the respondent to produce the details of the case against them. On August 25, 1995, Mr. Christopher Amerasinghe, who was counsel for the respondent at the time, informed counsel for the appellant Dueck that many of the relevant documents were in the process of being translated and so were unavailable.

8 On October 4, 1995, Jerome A.C.J. telephoned the parties to schedule the argument of the preliminary motions. Mr. Amerasinghe indicated that he intended to claim that certain documents sought by the appellants were privileged. The parties agreed that the questions of disclosure and privilege had to be settled before the cases could proceed. The Associate Chief Justice chose December 12, 1995 as the date upon which he would hear argument concerning those questions. Mr. Amerasinghe agreed that December 12 was “a reasonable date as scheduling goes in courts in Toronto”.

9 In November, the respondent released some documents to the appellants but withheld others. On December 12, 1995, counsel for the appellant Dueck argued for the whole day. At the end of the day, the matter was set over for continuation.

10 On January 10, 1996, the Federal Court ‑‑ Trial Division advised the parties that May 15 and 16, 1996 had been set aside for the completion of the argument that had begun on December 12, 1995. Less than a week later, Mr. Amerasinghe wrote to the Court Administrator to protest the May dates. In the letter, a copy of which he sent to counsel for the appellants, Mr. Amerasinghe pointed out that many of the proposed witnesses were of “advanced age” and “frail in health”. He complained in strong terms about the slow progress of the cases.

11 On February 19, 1996, the parties and the Associate Chief Justice participated in a teleconference. Mr. Amerasinghe repeated the points he had made earlier in his letter to the Court Administrator and offered to make submissions in writing in order to expedite the resolution of the preliminary issues. The Associate Chief Justice decided that he wished to have oral submissions. He confirmed that the oral argument would take place on May 15 and 16, 1996.

12 The events that form the heart of this appeal took place on March 1, 1996. On that day, Mr. Ted Thompson, who was the Assistant Deputy Attorney General in charge of civil litigation at the federal Department of Justice, met with Isaac C.J. of the Federal Court. The two men discussed the scheduling of the appellants’ cases and later that day exchanged letters, neither of which was copied to any of the counsel for the appellants. The letters read as follows:

March 1, 1996 HAND DELIVERED

The Honourable Chief Justice J. A. Isaac

Federal Court of Canada

Supreme Court of Canada Building

Ottawa, Ontario

K1A 0H9

Dear Chief Justice Isaac:

Re: Erichs Tobiass, T‑569‑95, Helmut Oberlander, T‑866‑95 and Johann

Dueck, T‑938‑95

Further to our meeting of this morning in which I advised you that the Attorney General of Canada is being asked to consider taking a Reference to the Supreme Court of Canada to determine some preliminary points of law primarily because the Federal Court Trial Division is unable or unwilling to proceed with the subject cases expeditiously.

Notices of Intention to revoke the citizenship of the above‑named individuals were sent out in January of 1995. They were persons who had been investigated in connection with allegations of war crimes and crimes against humanity during the second world war. Over the course of the next three months the cases were referred to the Federal Court. After complying with the requirements of Rule 920, Motions were brought requesting directions from the Court regarding discovery of evidence and taking evidence on commission. The Motions were filed April 13th (Tobiass), May 11th (Oberlander) and May 18th (Dueck), 1995 respectively. These Motions were necessary as there are no procedural rules governing these proceedings. We suggested the procedure followed in the Luitjens case be followed. Our Motion was originally set down for argument on June 30, 1995. Associate Chief Justice Jerome had become seized of the three cases and determined to hear all preliminary motions regarding them. On June 30th, counsel for Dueck argued that the three cases should be joined and also indicated that he wished to bring a Motion to stay the proceedings for abuse of process. Jerome, A.C.J. joined the three cases and granted adjournments over the objections of our counsel. September 15, 1995 was set as the date for the filing of facta and in a tele‑conference call on October 4, 1995 he set December 12, 1995 as the date on which argument was to be heard.

On December 12th, counsel for Dueck was permitted to argue all day and it was necessary to set the matter over for continuation. Jerome, A.C.J. indicated that the continuing date would be in February of 1996 despite our request for an earlier date and having regard to the fact that counsel for Dueck was available in early January. The Court declined to fix a date for continuation while all parties were present. When our counsel called the Court in January of 1996 requesting a date for continuation, he was advised several days later that argument had been set down for May 15th and 16th. We wrote the Court expressing concern about the long day [sic] and the urgency of proceeding with this matter. We suggested concluding the argument by written submissions. Counsel for Mr. Dueck objected and Jerome, A.C.J. indicated that even with written submissions he would want oral argument and on February 18th via tele‑conference with all parties he ordered that the dates of May 15 and 16 stand.

There are likely to be approximately 12 similar cases brought to the Federal Court with as many as 6 persons being given notice during the course of this year.

We are very concerned if these cases are not dealt with expeditiously they will never be heard on their merits. A crucial witness on the Tobiass case has cancer and may not be able to testify. In the Dueck case one key witness has died, one is in hospital and two others are so ill that they are unable to travel. Our counsel has estimated that at the current pace of proceeding and considering appeals in respect to interlocutory matters it will be years before these matters can be heard on their merits.

As you know, there is great public interest in seeing these cases disposed of on their merits and the potential for embarrassment is very high should it be seen that the Justice system is unable to respond to these urgent cases in a timely way.

I would appreciate any assistance you can offer.

Yours very truly,

J. E. Thompson

Assistant Deputy Attorney General

Civil Litigation

[Phone numbers]

By Hand

Mr. J. E. (Ted) Thompson, Q.C.

Assistant Deputy Attorney General

Civil Litigation Section

Department of Justice

Ottawa K1A 0H8

Dear Mr. Thompson:

Re: Erichs Tobiass T‑569‑95, Helmut Oberlander T-866-95 and

Johann Dueck T-938‑95

I refer to our discussions this morning and to your subsequent letter concerning these matters.

I have discussed your concerns with the Associate Chief Justice and, like me, he is prepared to take all reasonable steps possible to avoid a Reference to the Supreme Court of Canada on these matters.

The Associate Chief Justice has informed me that there are now before the Court five citizenship revocation cases ‑‑ the three mentioned in your letter which are being dealt with by Mr. Amerasinghe and, two earlier ones: one is being dealt with by Ms. Charlotte Bell (Khalil) and the other by Mr. Amerasinghe (Nemsila). The Associate Chief Justice has heard all of the evidence and argument in Nemsila but he had been asked by counsel for Nemsila to defer judgment in that case until Khalil has been concluded. Argument has commenced in that latter case and has been adjourned to 29 April for continuation.

In light of the concerns expressed in your letter the Associate Chief Justice will meet with Ms. Bell and, Ms. Jackman who appears for the Respondent, early next week to fix an early date for final argument. If an early date cannot be fixed he will give judgment in Nemsila and then deal with Khalil at the earliest possible date.

As regards the three cases about which you wrote, the Associate Chief Justice says firstly, that he did not fully appreciate until he read your letter, the urgency of dealing with these matters as expeditiously as the Government would like. However, now that he is aware he will devote one week from 15 May to deal with these cases not only with respect to the preliminary points but also with respect to the merits. Finally, he has authorized me to say that additional cases of this class coming into the Court will be given the highest priority in light of the concerns expressed in your letter.

Yours truly,

Julius A. Isaac

c.c.‑‑ The Hon. James A. Jerome

Associate Chief Justice

13 On March 7, 1996, the respondent provided copies of these letters to the appellants. In the cover letter, Mr. Amerasinghe explained that Mr. Thompson had approached the Chief Justice at the beginning of March to discuss the conduct of citizenship revocation cases generally and had, in the course of the meeting, happened to mention the appellants’ cases.

14 On April 2, 1996, counsel for the appellants Dueck and Oberlander requested disclosure of all documents that related directly or indirectly to the meeting that took place on March 1, 1996. Mr. Amerasinghe answered the next day that “there is no other correspondence between Mr. Thompson and the Chief Justice relating to this matter”. No disclosure was made of any documents besides the letters themselves.

15 On April 10, 1996, the Court Administrator informed counsel that the Associate Chief Justice would hear argument concerning preliminary motions on May 15 and 16, 1996, and if necessary during the following week. The Associate Chief Justice also sent word that he intended to be done with the cases by July of 1996.

16 On April 23, 1996, counsel for the appellants advised the court that they would move for a stay of proceedings on the ground that Mr. Thompson and Isaac C.J. had interfered with the independence of Jerome A.C.J. On April 30, counsel for the appellants Dueck and Oberlander indicated that they would be content to have the Associate Chief Justice remain in charge of the cases. Counsel for the appellant Tobiass had nothing to say on the subject, though he had indicated earlier that he would not object to having the Associate Chief Justice remain to settle the preliminary motions.

17 On May 6, the Associate Chief Justice recused himself. He directed that the appellants’ cases should go forward under a new judge on May 15, 1996 and indicated that the new judge’s list would be cleared to permit him to deal expeditiously with any remaining questions that the cases might pose.

B. Further Evidence

18 On May 5, 1997, this Court ordered the respondent to produce “[t]he internal Department of Justice documents concerning the fact[s] referred to” in a report prepared for the Government by former Chief Justice of the Ontario Court of Appeal, the Honourable Charles Dubin. On May 22, the Court ordered the respondent to comply fully with the order of May 5. In response to the two orders, the respondent disclosed many internal documents.

19 The following emerges from these documents.

20 Counsel for the respondent objected strongly to the Associate Chief Justice’s management of the appellants’ cases. It appears that Mr. Amerasinghe had concluded as early as December 14, 1995 that the Associate Chief Justice was a “problematic” judge.

21 On February 27, 1996, the Department of Justice’s Litigation Committee decided that “our only option in the circumstances [i.e. in response to delay in the Federal Court ‑‑ Trial Division] appears to be a reference to the Supreme Court of Canada of the preliminary questions that have been raised”. Mr. Thompson seems not to have been present during the discussion. A reference in a subsequent memorandum reveals that “the Litigation Committee at its meeting on February 27, 1996, specifically recommended that no one should approach the Chief Justice to apprise him of the government’s intention to refer certain questions to the Supreme Court”.

22 On March 1, 1996, Mr. Amerasinghe made the following note of a telephone conversation between himself and Mr. Thompson:

J.E.T. [J. Edward (Ted) Thompson] Called and informed me he had met with Isaac who told him that he would get Jerome to recuse himself from the cases and would put an efficient judge to deal quickly with the cases. Isaac had said he would ensure any appeals would be dealt with speedily.

According to Mr. Amerasinghe, later that same day the Chief Justice dined at Mr. Thompson’s home.

23 More than two months after the meeting between Mr. Thompson and the Chief Justice took place, Mr. Amerasinghe recorded his suspicion that Mr. Thompson’s real intention in approaching the Chief Justice had been to protect a friend from the embarrassment of a reference to the Supreme Court. Indeed, Mr. Amerasinghe indicated that Mr. Thompson and the Chief Justice were friends and frequent interlocutors. According to Mr. Amerasinghe’s report, the Chief Justice invited Mr. Thompson to inform him of perceived problems with the administration of the Federal Court, and Mr. Thompson obliged.

II. Judgments in Appeal

A. Trial Division, [1996 CanLII 4077 (FC)](https://www.canlii.org/en/ca/fct/doc/1996/1996canlii4077/1996canlii4077.html), [1996] 2 F.C. 729

24 On the strength of the letters exchanged by Mr. Thompson and the Chief Justice on March 1, 1996, Cullen J. concluded that irreparable harm had been done to the appearance of judicial impartiality. He entered a stay of proceedings.

25 Cullen J. thought that a reasonable observer presented with the letters of March 1, 1996 might conclude that, as a result of the meeting between Mr. Thompson and the Chief Justice, pressure was brought to bear on the Associate Chief Justice to hurry the appellants’ cases along, quite possibly to the appellants’ detriment. In this way damage was done to the appearance of judicial independence.

26 Because it was the Chief Justice who intervened, and the Chief Justice enjoys some authority over the entire court, Cullen J. thought that a reasonable observer would worry that the independence of all the judges and not only of the Associate Chief Justice had been compromised.

27 Having concluded that the appearance of judicial independence had suffered, Cullen J. considered whether a stay of proceedings was the appropriate remedy. He concluded that no remedy other than a stay of proceedings would cure the wrong done to the appearance of judicial independence. A less radical remedy would only “weaken judicial independence and leave the impression that transgressions of the Court’s integrity may be reprimanded but, ultimately, will be forgotten” (p. 748).

B. Federal Court of Appeal

28 The respondent purported to appeal Cullen J.’s decision.

(i) Motion to Quash for Want of Jurisdiction

29 The appellants moved to quash the appeal for want of jurisdiction. They argued that s. 18(3) of the Citizenship Act placed Cullen J.’s decision to stay the proceedings beyond appeal. The court dismissed the motion over Pratte J.A.’s dissent: (1996), 208 N.R. 49.

(a) Marceau J.A.

30 Marceau J.A. held that Cullen J.’s decision was capable of appeal. He concluded that s. 18(3) bars appeal only of decisions that a person has or has not obtained citizenship by impermissible means. He agreed (at p. 53) that the bar extends also to “all interlocutory rulings and decisions made with a view to ultimately coming to” a decision on the merits. However, he thought that the decision to enter a stay of proceedings did not come within the bar, because such a decision is neither a decision on the merits nor a decision made with a view to coming to a decision on the merits.

(b) Stone J.A.

31 Stone J.A. read s. 18(3) of the Citizenship Act as barring appeal only of decisions made under s. 18(1). Section 18(3), he argued, does not bar appeal of decisions made under other provisions of the Citizenship Act or under other Acts of Parliament. Because Cullen J. entered the stay using a power given by s. 50(1) of the Federal Court Act, R.S.C., 1985, c. F-7, s. 18(3) of the Citizenship Act did not bar an appeal of it.

(c) Pratte J.A. (dissenting)

32 Pratte J.A. interpreted s. 18(3) as barring appeal not only of a final decision on the merits of a citizenship reference but also of “the myriad of decisions that the Trial Division may make in the course of the reference including . . . a decision granting or refusing a stay of the reference proceedings” (p. 52). He judged that any other reading of the provision would lead to absurdities.

(ii) Stay of Proceedings

33 Having decided that it had jurisdiction to consider the appeal, the court unanimously set aside the stay of proceedings: 1997 CanLII 6328 (FCA), [1997] 1 F.C. 828. Each judge offered his own reasons for doing so.

(a) Marceau J.A.

34 Marceau J.A. concluded that the Associate Chief Justice had retained his judicial independence throughout the period in question. He noted that it is part of the role of a chief justice to manage his or her court. A chief justice must ensure that the court provides “timely justice”. Therefore, when a chief justice learns, by whatever means, that the pace of a proceeding is abnormally slow, he or she has a positive duty to investigate, though care must be taken not to interfere with the adjudicative functions of the presiding judge. In the light of this understanding of the role of a chief justice, Marceau J.A. could find no evidence to support the conclusion that the Chief Justice had done anything improper in approaching the Associate Chief Justice to discuss the pace of the appellants’ case.

35 Marceau J.A. likewise concluded that the appearance of judicial independence had not suffered as a result of the Chief Justice’s intervention with the Associate Chief Justice.

36 Although in Marceau J.A.’s view there had been no affront to judicial independence, he nevertheless considered whether, if there had been an affront, a stay of proceedings would have been the appropriate remedy. He concluded that it would not have been.

37 The question, in Marceau J.A.’s mind, was whether going ahead with the proceedings would perpetuate the appearance of impropriety. The inquiry was forward‑looking. What happened in the past could not justify a stay unless its ill effects were likely to persist. Marceau J.A. concluded that if the proceedings were to go ahead under some other judge, the appearance of an affront to judicial independence would be dispelled. It was quite unreasonable to suppose, as Cullen J. did, that there entire bench of the Trial Division had been tainted.

38 Because he concluded that Cullen J. had exercised his discretion to grant a stay on the basis of a mistaken understanding of the governing principles, Marceau J.A. held that the stay should be set aside.

(b) Pratte J.A.

39 Pratte J.A. wrote only to add two observations to Marceau J.A.’s reasons. The first was that no reasonable person would ever conclude from the Chief Justice’s intervention in the appellants’ cases that the independence of every member of the Trial Division had been compromised. The second was that Cullen J. was wrong to conclude that there was nothing unusually slow about the pace of the proceedings. The pace of the proceedings before the Associate Chief Justice “had been so slow as to certainly give rise to a suspicion that justice was not rendered with reasonable diligence” (p. 835). Thus, when the Chief Justice learned of the situation, regardless of how the information came to him, he was “duty bound to intervene”.

(c) Stone J.A.

40 Although concurring with his colleagues, Stone J.A. took an approach slightly different from theirs. He agreed with them there was “nothing in the record to suggest that the motivation for the meeting with and the letter to the Chief Justice was other than to convey the concern of a party for perceived delay in the progress of the cases in view of the age and state of health of the respondents and of potential witnesses” (p. 867). However, he believed that the appearance of judicial independence had suffered as a result of the events of March 1, 1996.

41 Having found some apprehension of bias, Stone J.A. had to consider what the appropriate remedy might be. He was not persuaded that what he had before him amounted to one of the “clearest of cases”, in which a stay of proceedings was warranted. Although what transpired was improper, there was no evidence that either Mr. Thompson or the Chief Justice had acted in bad faith. Stone J.A. agreed with Marceau J.A. that the lesser remedy of a new proceeding before a new judge would sufficiently answer any affront that the appearance of judicial independence had suffered.

III. Issues

42 This appeal presents three issues. The first is whether an appeal lies from a decision of a judge of the Trial Division to grant a stay of proceedings in a citizenship revocation proceeding commenced under s. 18(1) of the Citizenship Act. The second is whether judicial independence, or the appearance of it, suffered as a result of the meeting between Mr. Thompson and Isaac C.J. The third is whether, if any damage was done to the appearance of judicial independence, the trial judge properly exercised his discretion to enter a stay of proceedings.

IV. Analysis

43 We conclude that an appeal lies from a decision of the Trial Division to grant a stay of proceedings in a case such as this one. We further conclude that the appearance, but not the fact, of judicial independence suffered as a result of the meeting between Mr. Thompson and the Chief Justice, but that a stay of proceedings is not the appropriate remedy.

A. Jurisdiction

44 The appellants contend that, in light of s. 18(3) of the Citizenship Act, Cullen J.’s order was final and could not be appealed either to the Federal Court of Appeal or to this Court. To properly assess the merits of this submission, the interplay between s. 18 of the Citizenship Act and ss. 27 and 50 of the Federal Court Act must be considered.

45 Section 18 of the Citizenship Act provides that:

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.

(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. [Emphasis added.]

Section 2 of the same Act makes it clear that the “Court” referred to in s. 18 is the Federal Court ‑- Trial Division.

46 Sections 27 and 50 of the Federal Court Act provide that:

27. (1) An appeal lies to the Federal Court of Appeal from any

(a) final judgment,

(b) judgment on a question of law determined before trial,

(c) interlocutory judgment, or

(d) determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada,

of the Trial Division.

50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,

(b) where for any . . . reason it is in the interest of justice that the proceedings be stayed.

47 Section 27 of the Federal Court Act provides a general right of appeal from final and interlocutory judgments of the Federal Court -- Trial Division. Section 18(3) of the Citizenship Act, however, provides that “notwithstanding any other Act of Parliament”, no appeal lies from any decision of the Federal Court -- Trial Division made “under” s. 18(1). Thus, s. 18(3) of the Citizenship Act effectively removes the general right of appeal set out at s. 27 of the Federal Court Act with respect to all decisions made “under” s. 18(1).

48 No doubt Parliament may validly limit the jurisdiction of the Federal Court of Appeal in this manner. As this Court held in Roberts v. Canada, 1989 CanLII 122 (SCC), [1989] 1 S.C.R. 322, at p. 331, “the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts”. See also: ITO-‑International Terminal Operators Ltd. v. Miida Electronics Inc., 1986 CanLII 91 (SCC), [1986] 1 S.C.R. 752, at p. 766; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054; and McNamara Construction (Western) Ltd. v. The Queen, 1977 CanLII 13 (SCC), [1977] 2 S.C.R. 654. There is no appeal to the Federal Court of Appeal save in those circumstances specifically provided by statute.

49 Nevertheless, during the oral hearing and in the submissions made subsequently, some doubt was expressed as to whether s. 18(3) of the Citizenship Act had the effect of ousting the jurisdiction conferred upon this Court by s. 40 of the Supreme Court Act, R.S.C., 1985, c. S-26 (assuming without deciding that this provision would otherwise apply). Furthermore, it was suggested that, if s. 18(3) had such an effect, s. 7 of the Canadian Charter of Rights and Freedoms may be the source of a right of appeal directly to this Court in certain circumstances. However, in light of the conclusion reached as to the interpretation of s. 18(3) of the Citizenship Act, it will not be necessary to address these issues.

50 We agree with the conclusion of the Federal Court of Appeal that the stay of proceedings ordered by Cullen J. was not a decision made “under” s. 18(1) of the Citizenship Act. Section 18(3) of the Citizenship Act therefore does not apply to it and an appeal lies to the Federal Court of Appeal pursuant to s. 27 of the Federal Court Act.

51 This conclusion flows from the wording of s. 18. Section 18(1) refers to a very particular kind of decision: a decision as to whether a person “has obtained, retained, renounced or resumed citizenship” by false pretences. However, a stay of proceedings is entered for reasons which are completely unrelated to the circumstances surrounding the obtaining, retaining, renouncing or resuming of citizenship. Indeed, a decision to order (or not to order) a stay of proceedings is different from the type of determination that the Court is called upon to make under subsection 18(1).

52 This point was recognized by the Federal Court of Appeal in Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149, where it was held that a decision under s. 18(1) of the Citizenship Act is not a “final judgment” of the Federal Court -- Trial Division for the purposes of s. 27 of the Federal Court Act (at p. 152):

. . . there is no conflict at all between s. 18(3) and s. 27(1). First, this decision is not a “final judgment” of the court, nor is it an “interlocutory judgment”. Although the decision followed a hearing at which much evidence was adduced, it was merely a finding of fact by the court, which was to form the basis of a report by the minister and, eventually, a decision by the Governor in Council, as described by ss. 10 and 18(1). The decision did not finally determine any legal rights.

53 By way of contrast, a stay of proceedings is most definitely a “final judgment” of the Federal Court -- Trial Division. It has the effect of permanently bringing the proceedings to an end. It is a decision made under s. 50 of the Federal Court Act and not under s. 18(1) of the Citizenship Act.

54 It may be argued that a literal interpretation of s. 18(1) leads to the absurd and inequitable result that only a decision that a person obtained citizenship by false pretences would be final and without appeal. The opposite decision, namely that a person did not obtain citizenship by false pretences, could be appealed by the Minister.

55 Yet the language of s. 18(1) of the Citizenship Act should not be taken to mean that this subsection encompasses only a positive decision that citizenship was obtained by false pretences. It is true that s. 18(1) provides that the Minister may issue a report under s. 10 only if the court decides that citizenship was in fact obtained by false pretences. However, this language necessarily implies that the court may arrive at the opposite conclusion. Therefore, on its plain meaning, s. 18(1) empowers the Federal Court -- Trial Division to decide whether citizenship was “obtained, retained, renounced or resumed” by false pretences. Such a decision, be it affirmative or negative, is a decision made “under” s. 18(1). It may not be appealed either by the person who is the subject of the reference or by the Minister.

56 Although the issue does not arise here, there is a great deal of force to the argument that s. 18(1) of the Citizenship Act encompasses not only the ultimate decision as to whether citizenship was obtained by false pretences, but also those decisions made during the course of a s. 18 reference which are related to this determination. This would encompass all the interlocutory decisions which the court is empowered to make in the context of a s. 18 reference (see, for instance, s. 46 of the Federal Court Act and Rules 5, 450‑455, 461, 477, 900‑920, 1714 and 1715 of the Federal Court Rules, C.R.C., c. 663). This interpretation of s. 18(1) was adopted by the Federal Court of Appeal in Luitjens, supra, where it was held that interlocutory decisions made in the context of s. 18(1) reference are decisions made “under” s. 18(1). It is not necessary for the purpose of this decision to determine whether this conclusion should be varied. That should only be done in an appeal where the issue arises from the facts.

57 However, whether s. 18(1) is interpreted narrowly as encompassing only the ultimate decision as to whether citizenship was obtained by false pretences, or more broadly to include the interlocutory decisions made in the context of a s. 18(1) hearing which are related to this determination, it is apparent that it does not encompass an order granting or denying a stay of proceedings.

58 Unlike interlocutory decisions, a stay of proceedings will not be made in order to more efficiently determine the ultimate question of whether citizenship was obtained by false pretences. An order staying proceedings is therefore not related to this ultimate decision.

59 Furthermore, it may be that allowing appeals from interlocutory decisions made in the context of a s. 18 reference would effectively defeat Parliament’s goal of finality in citizenship matters. As McLachlin J. observed in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, there is a valid policy concern to control the “plethora of interlocutory appeals and the delays which inevitably flow from them” (p. 641). This same concern will not, however, generally apply to orders staying proceedings. Stays of proceedings are granted but rarely and only in the “clearest of cases”. They are granted for reasons unrelated to the merits of the s. 18 reference and are usually divorced from the “citizenship” context of the reference. Allowing appeals from stays of proceedings would therefore not seriously threaten the goal of finality in citizenship matters.

60 It should be noted that, even if s. 18(1) of the Citizenship Act were to be interpreted as encompassing not only the final determination as to whether citizenship was obtained by false pretences but also any decisions related to this determination, an exception should be made for a decision to deny a motion for a stay of proceedings. It is arguable that a decision denying a stay of proceedings is “related” to the question of whether citizenship was obtained by false pretences insofar as it has the effect of allowing the inquiry on the merits to proceed. However, it would appear to be fundamentally unfair, and contrary to the rules of natural justice, to allow appeals to be taken from a decision to order a stay of proceedings but not from a decision refusing to order a stay. Such a result could not have been intended by Parliament.

61 It follows that a decision allowing or denying a motion for a stay of proceedings is not a decision made “under” s. 18(1). It is a decision made under s. 50 of the Federal Court Act and may be appealed according to the rules set out at s. 27 of that Act. The appellants contend that this is at odds with the principles set out in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128. They argue that the better interpretation of s. 18 of the Citizenship Act is that all decisions made in the context of a s. 18 reference, be they final or interlocutory, “on the merits” or procedural, should be considered to have been made “under” s. 18(1) and therefore are subject to s. 18(3).

62 At issue in Jewitt was s. 605(1)(a) (now s. 676(1)(a)) of the Criminal Code which provided for a right of appeal by the Crown “against a judgment or verdict of acquittal” in certain circumstances. It was held that any order of the Court, regardless of the terminology used, which effectively brings proceedings to a final conclusion in favour of the accused is tantamount to a verdict of acquittal for the purposes of appeal. Such an order includes a stay of proceedings.

63 The appellants contend that if, in the criminal law context, a stay of proceedings is for the purposes of appeal tantamount to a decision on the merits, there is no reason for holding that it is not tantamount to a decision as to whether citizenship was obtained by false pretences under s. 18(1) of the Citizenship Act. The principle underlying Jewitt, it is argued, is that substance ought to triumph over form. If the order has the effect of bringing the proceedings to a close, it should, for the purposes of appeal, be considered a decision on the merits in favour of the person against whom the proceedings were instituted.

64 On their face the reasons in Jewitt appear to be compelling authority in favour of the appellants’ position. However, Jewitt must be read in light of the more recent judgment of R. v. Hinse, 1995 CanLII 54 (SCC), [1995] 4 S.C.R. 597. There, the accused sought leave to appeal a judgment of the court of appeal setting aside his conviction and entering a stay of proceedings. The issue was whether such a judgment is tantamount, for the purposes of appeal, to a judgment setting aside a conviction and entering a verdict of acquittal or ordering a new trial. The majority of this Court held that it was not.

65 The statutory basis of the court of appeal’s power to order a stay of proceedings was held to be not s. 686(2) of the Criminal Code (which empowers the court to set aside a conviction and from which no appeal by the accused lies), but s. 686(8) (which empowers the court to make ancillary orders). Furthermore, it was held that, as an order made under s. 686(8) of the Criminal Code, a stay of proceedings does not represent “a functionally integral part of a ‘judgment . . . setting aside or affirming a conviction’ ” (p. 626). Rather, it was held that “an order rendered under s. 686(8) represents a separate, divisible judicial act from which the accused or the Crown may independently seek leave to appeal under s. 40(1) of the Supreme Court Act” (p. 626). On this point, Lamer C.J. held, at pp. 619‑20, that:

The power of an appellate court to impose a stay of criminal proceedings, similar to a trial court, derives its origin from the inherent jurisdiction of a superior court of record at common law. But given the breadth of the language of the residual order provision, I believe that the concrete exercise of that inherent power necessarily manifests itself through the statutory font of s. 686(8). . . . While the power of a court of appeal to order a stay of proceedings for abuse of process traces its origins to the common law, the actual exercise of that authority inevitably carries a statutory gloss by virtue of s. 686(8) of the Criminal Code. . . .

But while an appellate court's power to direct a stay of criminal proceedings ought to be properly understood as an exercise of its authority to enter an order under s. 686(8) of the Code, an order under s. 686(8) nonetheless represents a fundamentally distinct judicial order from an order for a new trial in accordance with s. 686(2)(b) within the structure of the appeals regime of the Criminal Code. As such, I do not believe that both types of orders are necessarily jointly excluded from this Court's general jurisdiction to grant leave by virtue of s. 40(3) of the Supreme Court Act. [Emphasis added.]

66 This reasoning applies with equal force in the context of the Citizenship Act. The power to order a stay does not flow by necessary implication from the power to decide if citizenship was obtained by false pretences, set out at s. 18(1). Rather, it is a power which not only has its source in a different statutory provision (s. 50 of the Federal Court Act) but is also unrelated to the power set out at s. 18(1). To borrow the words of Lamer C.J. in Hinse, it is a “separate, divisible judicial act” (p. 626). Appeals from a decision to stay proceedings (or to refuse to enter a stay) should therefore be governed by the rules applicable to the statutory provision empowering the court to make this decision. Those rules are set out at s. 27 of the Federal Court Act and they provide expressly for a right of appeal. It follows that the Court of Appeal had jurisdiction to hear the Crown’s appeal in this case.

B. Judicial Independence

67 We conclude that the meeting between Mr. Thompson and Isaac C.J. and the subsequent conduct of officials of the Department of Justice did indeed cause damage to the appearance of judicial independence. The question remains as to the extent of that damage and how it should be weighed in considering whether a stay should be granted in these significant and important proceedings.

68 The independence of judges has two aspects: an institutional aspect and a personal aspect. As Le Dain J. wrote in Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 691:

. . . the word “independent” in s. 11(d) of the Charter is to be understood as referring to the status or relationship of judicial independence as well as to the state of mind or attitude of the tribunal in the actual exercise of its judicial function.

The parties agree that it is the personal aspect of judicial independence ‑‑ what is sometimes called “impartiality” ‑‑ that is at issue here. No one alleges, and indeed there is no credible evidence to suggest, that the integrity of the Federal Court as an institution has been compromised.

69 Though it is very important that the judiciary should actually remain independent, it is equally important that the judiciary should be seen to be independent. In our view, there is not sufficient evidence to support the conclusion that the Chief Justice and the Associate Chief Justice did not in fact remain independent. However, the evidence does compel us to conclude that the appearance of judicial independence suffered significantly as a result of what happened on March 1, 1996.

70 The test for determining whether the appearance of judicial independence has been maintained is an objective one. The question is whether a well‑informed and reasonable observer would perceive that judicial independence has been compromised. As Lamer C.J. wrote in R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, at p. 139, “[t]he overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality”.

71 The essence of judicial independence is freedom from outside interference. Dickson C.J., in Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, described the concept in these words, at p. 69:

Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider ‑‑ be it government, pressure group, individual or even another judge ‑‑ should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.

72 What emerges from all of this is a simple test for determining whether the appearance of judicial independence has been maintained: whether a reasonable observer would perceive that the court was able to conduct its business free from the interference of the government and of other judges.

73 There are many principles of professional conduct that must be observed in order to maintain the appearance of judicial independence. Two of these are particularly relevant here.

74 First, and as a general rule of conduct, counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case. See the Honourable J. O. Wilson, A Book for Judges (1980), at p. 52. The meeting between Mr. Thompson and the Chief Justice, at which counsel for the appellants were not present, violated this rule and was clearly inappropriate, and this despite the fact that the occasion for the meeting was a highly legitimate concern about the exceedingly slow progress of the cases.

75 Second, and again as a general rule, a judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views. It was therefore clearly wrong, and seriously so, for the Chief Justice to speak to the Associate Chief Justice at the instance of Mr. Thompson. We agree with Pratte J.A. that a chief justice is responsible for the expeditious progress of cases through his or her court and may under certain circumstances be obligated to take steps to correct tardiness. Yet, the actions of Isaac C.J. were more in the nature of a response to a party rather than to a problem. Thus, an action that might have been innocuous and even obligatory under other circumstances acquired an air of impropriety as a result of the events that preceded it. Quite simply, it was inappropriate.

76 In similar fashion, by responding as he did to the Chief Justice’s intervention without the participation of counsel for the appellants, Jerome A.C.J. acted inappropriately. We believe that there is ample evidence that might lead a reasonable observer to conclude that the Associate Chief Justice was not able to conduct the appellants’ cases free from the interference of the federal Department of Justice and of the Chief Justice of his court. Before March 1, 1996, the Associate Chief Justice was content with the pace at which the appellants’ cases were advancing through his court. Indeed, even after Mr. Amerasinghe wrote to the Court Administrator to complain about the slow pace of the proceedings, the Associate Chief Justice resolved not to expedite consideration of the preliminary motions. Instead, he insisted on hearing oral argument according to the original, exceedingly dilatory schedule. It was only after the March 1, 1996 meeting between Mr. Thompson and the Chief Justice that Jerome A.C.J. acquired an appreciation of the Government’s position. In his letter of March 1, 1996, the Chief Justice wrote:

As regards the three cases about which you wrote, the Associate Chief Justice says firstly, that he did not fully appreciate until he read your letter, the urgency of dealing with these matters as expeditiously as the Government would like. However, now that he is aware he will devote one week from 15 May to deal with these cases not only with respect to the preliminary points but also with respect to the merits. Finally, he has authorized me to say that additional cases of this class coming into the Court will be given the highest priority in light of the concerns expressed in your letter. [Emphasis added.]

77 Subsequent developments confirmed that the Associate Chief Justice had indeed finally received the Government’s message. On April 10, 1996, the Associate Chief Justice retreated from his earlier position and announced that he would set aside sufficient time in May to dispose of all the preliminary issues in the appellants’ cases. He also indicated that he would bring the cases to a final conclusion by July.

78 We do not see how a reasonable observer could fail at least to wonder whether the Government, through Mr. Thompson, had succeeded in influencing the Associate Chief Justice to take a position more favourable to the Government’s interests than he would otherwise have done. Making this conclusion even more likely is the undertaking of the Chief Justice and the Associate Chief Justice to Mr. Thompson that all reasonable steps would be taken to avoid a reference to the Supreme Court of Canada.

79 The respondent tries to resist this conclusion by saying that the impetus to efficiency came not from Mr. Thompson and the Government but from the Chief Justice. The Chief Justice, the respondent says, was duty‑bound to look into what was, by any objective standard, a serious delay in proceedings in his court. The respondent thus offers the Chief Justice as a kind of novus actus interveniens who stands between the Government and the Associate Chief Justice and, by the propriety of his own intentions, severs what would otherwise be an improper link between them.

80 What the respondent’s submission overlooks is that the Chief Justice was not able to exercise his administrative function entirely free from outside interference. Mr. Thompson approached the Chief Justice and told him that if the Associate Chief Justice did not pick up the pace, the Federal Court would face the embarrassment of having the Government go “over its head” to this Court. The Chief Justice’s letter to Mr. Thompson suggests that this “threat” carried some weight with him and with the Associate Chief Justice as well:

I have discussed your concerns with the Associate Chief Justice and, like me, he is prepared to take all reasonable steps possible to avoid a Reference to the Supreme Court of Canada on these matters.

It is reasonable to suppose that the threat of appeal to a higher authority influenced the Chief Justice and Associate Chief Justice to act in a way that would otherwise have been unpalatable to them. In this we agree entirely with Stone J.A., who found that “an informed person would conclude that this decision, by which the hearing of all preliminary motions and the trials would be compressed into a relatively short time frame, would redound to the disadvantage of the individual respondents [now appellants] and was taken so as ‘to avoid’ a reference to the Supreme Court” (p. 868). To interfere with the scheduling of cases because of delay is one thing but to pledge to take all reasonable steps to avoid a reference to the Supreme Court of Canada is quite another. It is wrong and improper for a judge to give such an undertaking. What is pertinent is to avoid delays, not to avoid appeals or recourse to higher courts.

81 However, the respondent is quite right to observe that the delay in the Federal Court ‑‑ Trial Division was inordinate and arguably inexcusable, and posed a real problem for the Department of Justice and for the Chief Justice. The fact is that in the space of a year, the Associate Chief Justice heard only one day of argument, and that on a preliminary motion. In our view, the Associate Chief Justice’s dilatoriness defies explanation. The appellants attempt nevertheless to explain it, saying that the Associate Chief Justice had reason to delay the proceedings until judgment had been given by himself in a case called Nemsila, which might have cast some light on citizenship revocation cases generally. The Chief Justice for his part mentioned the Nemsila case in his letter of March 1, 1996, though he did not attempt to offer it as a justification for delay in the appellants’ cases.

82 However, even accepting that there was reason to await the rendering of judgment in Nemsila, the proper procedure would have been to hear argument on the appellants’ motion and, if necessary, to reserve judgment. To call three cases to a halt awaiting the outcome of another case strikes us as a procedure calculated to create unnecessary delay. The appellants also point out that the respondent was not ready to proceed to a hearing on the merits. Apparently the respondent had not finished translating certain witness statements. But no one has suggested that the matter should have been brought to a conclusion on the merits before May 15, 1996, only that some progress should have been made toward resolving the preliminary questions before that date, and to settle the preliminary questions would not have required that all the witness statements should be available. Therefore, the fact that the respondent was not yet ready to proceed to trial cannot excuse the delay in the Associate Chief Justice’s consideration of the preliminary questions.

83 What all this means is that Mr. Thompson went to the Chief Justice with a legitimate grievance. This fact does not excuse what Mr. Thompson did ‑‑ he assuredly chose an impermissible means of presenting his grievance ‑‑ but it does cast into very real doubt the sinister interpretation that the appellants have attempted to place on his conduct. Given the vexing delay that the respondent had faced in the Trial Division, it is quite understandable that Mr. Thompson would have wished to do something about it. We believe that Mr. Thompson’s motives were proper. It was his judgment that is questionable. What Mr. Thompson did was not wicked or done in bad faith. It is enough to say that what he did was inappropriate. As senior counsel in the Department of Justice, he arranged to speak privately ‑‑ without opposing counsel present ‑‑ to the Chief Justice, concerning cases which were pending. This he should not have done.

84 The appellants suggest that there was a “conspiracy” to have the Associate Chief Justice recuse himself from the cases. Clearly there is insufficient evidence before this Court to dispose of this question fully, and we do not believe that it is crucial to the outcome of this appeal. Still, in our view, to accept that suggestion would stretch the bounds of credulity. Although Mr. Amerasinghe recorded that Mr. Thompson had gotten the Chief Justice to agree to have the Associate Chief Justice recuse himself, the evidence is all inconsistent with the existence of any such agreement. As events developed, the Associate Chief Justice did not recuse himself. Quite the contrary, on April 10, 1996, the Associate Chief Justice indicated that he wished to hear argument concerning the preliminary motions on May 15 and 16, as previously scheduled. It was only after the appellants indicated that they would seek a stay of proceedings on the ground that the Associate Chief Justice’s independence had been compromised that the Associate Chief Justice recused himself. In the light of these events, the only way that the suggestion of a conspiracy can be credited is on the supposition that Mr. Thompson, the Chief Justice, and the Associate Chief Justice orchestrated the whole affair, from the disclosure of the March 1 correspondence through to the appellants’ motion for a stay of proceedings. Again, we would emphasize that we lack the evidence necessary to decide this question and do not purport to do so. But that supposition passes all belief. Certainly no reasonable observer, apprised of all the facts, would believe it. Therefore, all that Mr. Amerasinghe’s note shows is that Mr. Amerasinghe believed that some arrangement had been made to have the Associate Chief Justice recuse himself. The outcome of this appeal cannot turn on what Mr. Amerasinghe believed.

85 In short, the evidence supports the conclusion that the appearance of judicial independence suffered a serious affront as a result of the March 1, 1996 meeting between Mr. Thompson and Isaac C.J. This affront very seriously compromised the appearance of judicial independence. A reasonable observer apprised of the workings of the Federal Court and of all the circumstances would perceive that the Chief Justice and the Associate Chief Justice were improperly and unduly influenced by a senior officer of the Department of Justice. However, there is no persuasive evidence of bad faith on the part of any of the actors in this drama, nor is there any solid evidence that the independence of the judges in question was actually compromised.

C. The Remedy

86 Although the meeting and subsequent exchange of letters between Mr. Thompson and the Chief Justice were very serious matters that compromised the appearance of the Chief Justice’s and the Associate Chief Justice’s independence, on balance the damage was not sufficiently serious to warrant the granting of that ultimate remedy of a stay of proceedings. The lesser remedy of ordering the appellants’ cases to proceed before a different judge of the Federal Court ‑‑ Trial Division will, together with the additional conditions, suffice.

(i) The Standard of Review

87 A stay of proceedings is a discretionary remedy. Accordingly, an appellate court may not lightly interfere with a trial judge’s decision to grant or not to grant a stay. The situation here is just as our colleague Gonthier J. described it in Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367, at p. 1375:

[A]n appellate court will be justified in intervening in a trial judge’s exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice.

See also R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, at para. 48.

(ii) The Legal Principles

88 Though Cullen J. derived his power to enter a stay of proceedings from s. 50(1)(b) of the Federal Court Act and not from the Charter or the common law, the same principles that govern stays of proceedings under the latter heads of power apply equally well here. The “interest of justice” referred to in s. 50(1)(b) of the Federal Court Act is not fundamentally different from the concerns that animate the jurisprudence developed under s. 24(2) of the Charter, although the context in which s. 50(1)(b) operates may be different.

89 Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct. However, there is a “residual category” of cases in which a stay may be warranted. L’Heureux‑Dubé J. described it this way, in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 73:

This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

The residual category, it bears noting, is a small one. In the vast majority of cases, the concern will be about the fairness of the trial.

90 If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate. They are that:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice.

(O’Connor, supra, at para. 75.)

91 The first criterion is critically important. It reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future. See O’Connor, at para. 82. For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category. See O’Connor, at para. 75. The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well ‑‑ society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare.

92 After considering these two requirements, the court may still find it necessary to consider a third factor. As L’Heureux‑Dubé J. has written, “where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings”: R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659, at p. 1667. We take this statement to mean that there may be instances in which it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern. Rather, it merely recognizes that in certain cases, where it is unclear whether the abuse is sufficient to warrant a stay, a compelling societal interest in having a full hearing could tip the scales in favour of proceeding.

(iii) Application of the Law to the Facts

93 For several reasons, a stay of proceedings is not the appropriate remedy in these cases. First, there is no likelihood that the carrying forward of the cases will manifest, perpetuate or aggravate any abuse. Second, the lesser remedy of ordering the cases to go forward under the supervision of a different judge of the Trial Division without any direction or intervention from the Chief Justice or the Associate Chief Justice will suffice. In this connection, we believe that, if Isaac C.J. or Jerome A.C.J. considered the situation and the possible perception of bias by reasonable observers, they would agree that it would be preferable if they did not participate in any future cases dealing with the same or related issues. Third, Canada’s interest in not giving shelter to those who concealed 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 by proceeding with the cases. To the extent that he thought otherwise, the trial judge was in error.

(a) No Likelihood That Any Abuse Will Be Manifested in the Future

94 Although damage was done to the appearance of judicial independence, there is no indication that it will be manifested, perpetuated or aggravated by any future proceeding. Therefore, a stay of proceedings is not an appropriate remedy.

95 The appellants’ best argument is that this case falls into the “residual category” mentioned in O’Connor because the state conducted its case against them so unfairly and vexatiously that harm was done to the very integrity of the judicial system. To carry forward in the light of what was done, they submit, would be to condone official misconduct and thereby to aggravate the abuse.

96 The problem with the appellants’ submission is that it reflects a misunderstanding of the stay of proceedings as a remedy. When one looks at the criteria identified by L’Heureux‑Dubé J. in O’Connor, supra, at para. 75, and the accompanying discussion, what emerges, in our view, are the following propositions. A stay is not a form of punishment. It is not a kind of retribution against the state and it is not a general deterrent. If it is appropriate to use punitive language at all, then probably the best way to describe a stay is as a specific deterrent ‑‑ a remedy aimed at preventing the perpetuation or aggravation of a particular abuse. Admittedly, if a past abuse were serious enough, then public confidence in the administration of justice could be so undermined that the mere act of carrying forward in the light of it would constitute a new and ongoing abuse sufficient to warrant a stay of proceedings. However, only an exceedingly serious abuse could ever bring such continuing disrepute upon the administration of justice. It is conceivable, we suppose, that something so traumatic could be done to an individual in the course of a proceeding that to continue the prosecution of him, even in an otherwise unexceptionable manner, would be unfair. Similarly, if the authorities were to fabricate and plant evidence at the scene of a crime, the continued pursuit of a criminal prosecution might well be damaging to the integrity of the judicial system.

97 However, the damage that the appearance of judicial independence suffered as a result of the meeting between Mr. Thompson and the Chief Justice was not so serious that to proceed despite it would constitute an abuse. A reasonable, fully-informed member of the public, confronted with a continuation of the proceedings, would not think that an injustice was being perpetuated. Mr. Thompson, the Chief Justice and the Associate Chief Justice acted imprudently, but not to such an extent that they undermined public confidence in the justice system. Nothing was done that could have rendered the proceedings oppressive for the appellants. Undoubtedly, the appellants had a legitimate concern that the judge who had charge of their cases and the Chief Justice had become partial to the state. But that concern had to do only with the particular judges involved and not with the justice system as a whole. Thus it is clear that remedies other than a stay will rectify this unfortunate situation.

98 The appellants further submit that the appearance of judicial partiality will continue in the future if the cases are allowed to proceed. In our view, there is no prospect of judicial partiality in the future. The Chief Justice intervened only with the Associate Chief Justice. His conduct did not compromise the integrity of any other judges. The taint is confined to the Associate Chief Justice and the Chief Justice and can be readily contained.

99 Despite these rather obvious facts, Cullen J. found that a reasonable person would worry that the Chief Justice would exercise an improper influence over any judge appointed to hear the appellants’ cases. With respect, we do not agree. His finding rests on an incomplete view of the law. Contrary to public perception, it is clear that a chief justice is only “primus inter pares in the court”. Ruffo v. Conseil de la magistrature, 1995 CanLII 49 (SCC), [1995] 4 S.C.R. 267, at para. 59. He or she enjoys no particular authority over other judges, save an administrative one. See Federal Court Act, s. 6(1).

100 Any influence that the Chief Justice might have had over the Associate Chief Justice might have been by virtue of some particular quality of their personal relationship. In this respect, we cannot refrain from commenting that the formal structural relationship between the Chief Justice and the Associate Chief Justice is not clear and in the aftermath of these events, perhaps the appropriate authorities might wish to consider the matter further to clarify the situation. But that aside, what happened between the Chief Justice and the Associate Chief Justice should not be taken as a reflection of the institutional relationship between them. A reasonable observer would understand this, and would understand also that the individual judges of the Trial Division “have nothing to gain by not deciding as their consciences dictate and nothing to lose by doing justice”: Ruffo, supra, at para. 101.

101 The sturdy resolve that Cullen J. himself demonstrated in deciding to grant a stay of proceedings was no aberration. It is precisely what any reasonably intelligent person, apprised of the workings of the Federal Court, would expect. However, by failing to credit the reasonable observer with sufficient understanding to recognize what was apparent even in his own conduct, Cullen J. committed an error of law. His exercise of discretion was founded on a misdirection and so cannot be allowed to stand.

102 The decision of this Court in R. v. Vermette, 1988 CanLII 87 (SCC), [1988] 1 S.C.R. 985, affords a good illustration of the correct approach to problems of apparent partiality. Vermette involved certain inflammatory and well‑publicized remarks made by the Premier of Quebec about a case that was then before the courts. The trial judge entered a stay of proceedings, in part on the ground that the Premier’s remarks had infringed the accused’s right to a fair trial by making it unlikely that an impartial panel of jurors could be found. This Court set aside the stay. It held that the trial judge had founded his decision on impermissible speculation. La Forest J., for the majority, observed that there was “no evidence indicating that it will be impossible to select an impartial jury in a reasonable time” (p. 992). He further emphasized that, in the words of the Ontario Court of Appeal, “[t]here is an initial presumption that a juror . . . will perform his duties in accordance with his oath”. See R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, at p. 289.

103 The same kind of reasoning applies here. It is mere speculation that no impartial judge can be found. There is an initial presumption of fundamental importance that judges will be faithful to their solemn oath of office and not pay heed to any ill‑advised interventions of a chief justice whose authority to intervene is limited to administrative matters. This serves as an answer not only to the suggestion that Mr. Thompson and the Chief Justice will persist in their improper behaviour but also to the recent suggestion that Mr. Thompson’s interference in the affairs of the Federal Court was more extensive than previously believed. Even if it is true that Mr. Thompson served as a sort of informer for the Chief Justice, reporting to him on judges whose performance was not acceptable to the federal government, still there is no reason to believe that such chicanery has impaired or will impair the ability of the judges of the Federal Court to function independently and in accordance with their oaths. The judge’s oath is a solemn and weighty covenant, not lightly betrayed. Until some evidence appears that the independence of a particular judge may have been compromised, as happened with respect to the Associate Chief Justice as a result of the Chief Justice’s letter of March 1, 1996, it remains a matter of speculation that a judge will be anything less than entirely faithful to the office.

(b) A Lesser Remedy Is Sufficient

104 For reasons similar to the ones we have already given, the abuse will be sufficiently remedied if we order that the cases against the appellants should go forward under a different judge of the Trial Division. There is every reason to think that the example of independence set by Cullen J. below will be followed by his successor.

105 If any illustration is needed of the sufficiency of a new trial as a remedy for bias, no better one can be found than the recent decision of this Court in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217. In that case, it emerged following the trial that Crown counsel and the police had administered a sort of litmus test to prospective jurors. In particular, they had sought to discover what prospective jurors thought about moral issues that would arise in the course of the trial. Five of the jurors who had been questioned in this way became members of the jury. This Court condemned the actions of Crown counsel as “nothing short of a flagrant abuse of process and interference with the administration of justice” (para. 43).

106 The reasonable inference to be drawn is that if the lesser remedy of a new trial was adequate in Latimer, which arguably involved a more serious apprehension of bias than this appeal does, then a fortiori it is adequate here.

(c) Society’s Interests Weigh Against a Stay

107 If we had concluded that having regard to the other factors it was unclear whether the abuse was sufficient to warrant a stay, we would have found that the societal interest in seeing these cases through to their conclusion tips the balance against a stay. The following words of L’Heureux‑Dubé J., in O’Connor, supra, at para. 81, are apt:

. . . in determining whether the prejudice to the integrity of the judicial system is remediable, consideration must be given to the societal and individual interests in obtaining a determination of guilt or innocence. It goes without saying that these interests will increase commensurately to the seriousness of the charges against the accused.

108 Perhaps the first thing to notice is that what is at stake for the appellants in this case is arguably different from what is at stake for the typical accused in the typical criminal case. The state is trying to deprive the appellants of their citizenship and not of their liberty. Canadian citizenship is undoubtedly a very “valuable privilege” (see Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), [1997] 1 S.C.R. 358, at para. 72). For some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty. Yet for most, liberty is more valuable still. Therefore, the interests on the appellants’ side of the balance do not weigh quite so heavily as they would if the proceedings were purely criminal in nature.

109 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

110 An ongoing affront to judicial independence may be such that any further proceedings in the case would lack the appearance that justice would be done. In such a case the societal interest would not be served by a decision on the merits that is tainted by an appearance of injustice. The interest in preserving judicial independence will trump any interest in continuing the proceedings. Even in the absence of an ongoing appearance of injustice, the very severity of the interference with judicial independence could weigh so heavily against any societal interest in continuing the proceedings that the balancing process would not be engaged. This would occur rarely and only in the clearest of cases. Neither of these circumstances is present here. We have concluded that continuing the proceedings under the conditions we have outlined will not result in an ongoing appearance of injustice. Moreover, the affronts to judicial independence were serious but not so serious as to warrant a stay without balancing the harm to the image of the justice system against the interest of society in seeing alleged war criminals brought to justice. The crimes involved rank among the most heinous in history, and the civilized world’s resolve to apply the appropriate sanctions should not be interfered with lightly. What transpired between Mr. Thompson and the Chief Justice on March 1, 1996 cannot justify such an interference, wrong and improper as it was. It if 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 well have constituted one of those rare and clearest of cases. But this was not the case. As matters stand, society’s interest in seeing the cases through to their conclusion is of a most pressing nature and outweighs the affront to the appearance of judicial independence.

111 Therefore, the only just decision under the circumstances is that the cases should be allowed to proceed. To paraphrase the remarks of our colleague La Forest J. in Vermette, supra, at p. 994, “judicial abdication is not the remedy”. It is in the public interest that allegations of the most wicked kinds of criminal activity should be scrutinized by the judiciary. In all the circumstances, the imprudent actions of Mr. Thompson, the Chief Justice, and the Associate Chief Justice should not be permitted to frustrate the judicial process.

(iv) Conclusion

112 A stay of proceedings should not be granted in this case. Rather, the appropriate remedy is to have the cases against the appellants go forward under the supervision of a judge of the Trial Division, one who has, up to this point, had nothing to do with the affairs that form the subject matter of this appeal. The judge appointed will ignore all directions previously given by the Associate Chief Justice or the Chief Justice in these cases. Isaac C.J. and Jerome A.C.J. should not have anything further to do with these cases.

113 Before we conclude, there is one final matter that bears mentioning. It is this.

114 A well‑known rule of Parliamentary practice holds that no Member of the House of Commons should comment upon any matter that is pending before the courts. The following account of what is called the “sub judice rule” appears in Beauchesne’s Rules & Forms of the House of Commons of Canada (6th ed. 1989), at p. 153 (para. 505):

Members are expected to refrain from discussing matters that are before the courts or tribunals which are courts of records. The purpose of this sub judice convention is to protect the parties in a case awaiting or undergoing trial and persons who stand to be affected by the outcome of a judicial inquiry. It is a voluntary restraint imposed by the House upon itself in the interest of justice and fair play.

Though the rule is a matter of Parliamentary convention and not of statutory law, “[i]t is desirable that the convention of Parliament as to matters sub judice should, so far as possible, be the same as the law administered in the courts”, or, in other words, that parliamentarians should act in a way that does not render more difficult the administration of the law by judges. See Attorney‑General v. Times Newspapers Ltd., [1973] 1 Q.B. 710 (C.A.), at pp. 740-41, per Lord Denning M.R.

115 It seems to us that the decision to make public the report of the Honourable Charles Dubin on communications between Department of Justice officials and the courts while the matter was before the courts raises concerns about the sub judice rule. The Honourable Mr. Dubin was under retainer to the Department of Justice. He was responsible to the Minister of Justice. If Parliamentary convention did not permit the Minister to speak about the conduct of Mr. Thompson and the Chief Justice, then arguably it did not permit him to retain a third party to speak on his behalf about important aspects of the same subject matter that was before the courts.

116 The release of the report complicated the conduct of the appeal. Once it was released the appellants moved for production of many documents that the Department of Justice had handed over to Mr. Dubin. Their demands involved first the Federal Court of Appeal and later this Court in difficult and time‑consuming inquiries into questions of privilege, and ultimately placed this Court in the awkward position of having to consider without the benefit of a trial judge’s findings of fact the credibility of certain items of evidence. These difficulties could easily have been avoided had the report not been released until after the conclusion of proceedings in the courts.

117 Nevertheless, the sub judice rule was not raised as a ground of appeal. Therefore, it is not for us to say whether the Minister violated the rule. However, we can say that even if the release of the report did constitute a violation of the rule, still that would not be a sufficient reason to grant a stay of proceedings in the circumstances of this case. As La Forest J. wrote in Vermette, supra, at p. 994, “judicial abdication is not the remedy for an infringement of the sub judice rule”.

118 Also of concern is the intervention of the Canadian Judicial Council. We understand that one of the Council’s committees issued a report in which comments were made about the conduct of Isaac C.J. and Jerome A.C.J. in connection with the appellants’ cases. Although the Canadian Judicial Council is not bound by the sub judice rule, it might have been preferable in these circumstances for the Council to have refrained from making its report while the matter of the stay of proceedings was still working its way through the courts. There is a further complication arising from the premature release of these reports. It arises because these reasons could be taken as indicating that we take a more serious view of these events than did either the Honourable Mr. Dubin or the Judicial Council although the Council did not have the benefit of all the material that was before this Court.

V. Disposition

119 We would dismiss the appeal. The stay of proceedings is set aside and the cases against the appellants are directed to proceed before a judge of the Trial Division. In accordance with s. 6(3) of the Federal Court Act, which provides for the precedence of judges in the event that the Chief Justice and Associate Chief Justice are unable to act, the senior judge who is able to act should choose a presiding judge from among those judges of the Trial Division who have heretofore had nothing to do with the conduct of these cases. The judge thus chosen will ignore any undertakings that Isaac C.J. or Jerome A.C.J. made to Mr. Thompson. Neither Isaac C.J. nor Jerome A.C.J. will have anything further to do with these cases.

120 Under all the circumstances, we would award costs to the appellants here and in the courts below.

Appeal dismissed with costs to the appellants.

Solicitor for the appellant Tobiass: Gesta J. Abols, Toronto.

Solicitors for the appellant Dueck: Bayne Sellar Boxall, Ottawa.

Solicitors for the appellant Oberlander: Sack Goldblatt Mitchell, Toronto.

Solicitor for the respondent: George Thomson, Toronto.

Solicitor for the intervener: Ed Morgan, Toronto.