T-2645-81
In re the Citizenship Act and in re Susan Holven-
stot (Appellant)
Trial Division, Verchere D.J.—Courtenay, Octo-
ber 2; Vancouver, October 26, 1981.
Citizenship — Appeal from refusal of application for citi
zenship pursuant to para. 20(l)(6) of the Citizenship Act
Appellant had been charged with an indictable offence, but
proceedings had been stayed — Citizenship Judge held that
because the Crown was entitled under subs. 508(2) of the
Criminal Code to recommence proceedings on the stayed
charge within one year of the stay, the appellant was still a
person charged with an indictable offence — Appellant
obtained a letter stating that the Crown did not intend to
proceed further with the charge — Whether the letter estops
the Crown from further proceeding with the charge — Wheth
er the estoppel of further proceedings on the stayed charge
renders the charge a nullity and outside the scope of para.
20(1)(b) — Appeal allowed — Citizenship Act, S.C. 1974-75-
76, c. 108, s. 20(1)(b) — Criminal Code, R.S.C. 1970, c. C-34,
s. 508(1),(2) — Narcotic Control Act, R.S.C. 1970, c. N-1, s. 6
— Federal Court Rule 916.
Robertson v. Minister of Pensions [1949] 1 K.B. 227,
applied. R. v. McLeod (1970) 74 W.W.R. 319 (B.C.
Supreme Court), referred to.
APPEAL.
COUNSEL:
Susan Holvenstot on her own behalf.
James E. Dow, amicus curiae.
SOLICITORS:
Susan Holvenstot on her own behalf.
James E. Dow, Courtenay, for amicus curiae.
The following are the reasons for judgment
rendered in English by
VERCHERE D.J.: This appeal from the refusal
by a Judge of the Citizenship Court to approve the
appellant's application for citizenship came before
me as a new hearing at which the appellant sub
mitted new evidence. It consisted of a letter dated
April 27, 1981, which had been given to the appel
lant's then solicitor by an associate of counsel
retained by the Crown for the prosecution of drug-
related offences in the Courtenay area reading as
follows:
I am writing further to your letter of April 9, 1981, regard
ing Ms Holvenstot. This is to advise you that the Crown does
not intend to take further proceedings against Ms Holvenstot
on the charge of cultivating marihuana. Trusting this is the
information you require....
The charge referred to above is clearly for an
indictable offence: see Narcotic Control Act,
R.S.C. 1970, c. N-1, section 6. It had been laid on
August 18, 1980, but not proceeded with until, on
March 18, 1981, after its existence had been duly
disclosed at the citizenship hearing, it was stayed
by the Crown pursuant to subsection 508(1) of the
Criminal Code, R.S.C. 1970, c. C-34. Following
the stay, the hearing was resumed and concluded
on March 31, 1981, when the learned Judge
refused her approval because she was of the opin
ion that as the Crown was entitled under subsec
tion 508(2) of the Code to recommence proceed
ings on the stayed charge within one year of the
stay, the appellant was still a person charged with
an indictable offence and therefore a person to
whom a grant of citizenship was prohibited by
paragraph 20(1)(b) of the Citizenship Act, S.C.
1974-75-76, c. 108. The appellant thereupon
obtained the above-quoted letter and promptly
gave notice of appeal.
During the appeal proceedings the amicus
curiae suggested that the decision stated in the
letter would not bind another prosecutor with
instructions to continue proceedings on the stayed
charge and expressed the view that for the period
of one year from the date of the stay the appellant
would therefore continue to be a person charged
with an indictable offence. He cited no authority
for that statement, but it seemed to me to raise the
question of the liability of the Crown to estoppel,
and also the doctrine of executive necessity.
Accordingly, I reserved the matter for consider
ation.
It seems clear that because of subsection 508(2)
supra, no constraint on the Crown's future action
on the charge arose because of the stay alone. For
the statutory period mentioned there, the Crown is
expressly permitted to continue proceedings on a
stayed charge. Furthermore, it has been held that
apart entirely from subsection 508(2) proceedings
on a stayed charge may be continued without any
need to proceed by way of fresh prosecution for the
same offence: see Regina v. McLeod (1970) 74
W.W.R. 319 (B.C. Supreme Court). Accordingly,
I find myself in agreement with the view of the
learned Citizenship Judge and I turn to consider
the effect on the matter of the letter of April 27,
1981.
It has been said, and I accept it as correct, that
an estoppel can bind the Crown: see Robertson v.
Minister of Pensions [1949] 1 K.B. 227. There,
Denning J., as he then was, held that a letter from
the War Office to the appellant, which contained
an express acknowledgement by the former of the
source of the injuries in respect of which a pension
was sought by the latter, fell within the principle
"that if a man gives a promise or assurance which
he intends to be binding on him, and to be acted on
by the person to whom it was given, then, once it is
acted upon, he is bound by it" [at page 231], and
accordingly found in favour of the appellant. The
question here, then, is whether the prosecutor's
letter meets those tests.
It seems to me reasonably certain from the date
of the letter, the contents of it and the prompt use
to which the appellant put it that that use was in
fact intended. That is to say, it seems reasonably
certain that it was written and given to make it
appear that the charge which had prohibited a
grant of citizenship to the appellant need no longer
be taken into account. The prosecutor apparently
considered that if the Crown should obtain evi
dence to support the charge which it was said was
then lacking, it would be open to it to proceed by
way of a fresh prosecution. Hence, it would seem
no term was expressed (nor can one be implied)
that the Crown was free to revoke its decision at
its pleasure and that being so, it seems to me that
further proceedings on the charge must be
estopped and that, just as the doctrine of executive
necessity was held inapplicable in the Robertson
case, it is equally inapplicable here.
However, can the estoppel of further proceed
ings on the already stayed charge equate the
charge with a nullity for practical purposes and
thus put it outside the scope and purview of para
graph 20(1)(b) supra? In my opinion, it can and
does do so and for the reasons already stated
above, the answer to that question must be in the
affirmative. Furthermore, it is to be noted that
there was no suggestion that the Crown officers
responsible for the stay and for the letter of April
27, 1981, had not considered and intended that
such a result would ensue. Although I was not
made aware of the contents of the solicitor's letter
of April 9, 1981, it can be fairly assumed that he
was seeking some action or some statement that
would take the charge outside the operation of the
prohibition; and in addition it is to be also noted
that because a stay of proceedings is entirely the
Crown's prerogative, in the exercise of which the
Court has no part, the conclusion that the Crown's
letter made the charge a nullity cannot cast any
reflection on the power or the dignity of the Pro
vincial Court in which the charge was laid.
For those reasons the appeal is allowed, and
because the decision of the learned Citizenship
Judge indicated that the requirements of the Citi
zenship Act had been complied with and that the
only bar was the prohibition already mentioned, I
do not think that the matter need be sent back to
her.
Accordingly, there will be a pronouncement that
the appellant's application for citizenship is
approved, to be forwarded by the Registry to the
appellant, the Citizenship Judge concerned, the
amicus curiae and the Minister pursuant to Rule
916.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.