T-1585-84
In re the Citizenship Act and in re Charles
Emmanuel Noailles (Appellant)
Trial Division, Dubé J.—Montreal, April 12;
Ottawa, May 22, 1985.
Citizenship — S. 20(2) of Citizenship Act prohibiting grant
of citizenship if applicant convicted of indictable offence
during three-year period preceding application — S. 20(2) not
contravening s. 11(h) of Charter guaranteeing right not to be
tried or punished for indictable offences again iffinally found
guilty — S. 11 applying only in criminal proceedings: Re
James and Law Society of British Columbia (1982), 143
D.L.R. (3d) 379 (B.C.S.C.) — Dismissal of citizenship applica
tion not second penalty, but civil consequence of indictable
offence — Citizenship Act, S.C. 1974-75-76, c. 108, s. 20(2)
(as am. by S.C. 1977-78, c. 22, s. 8) — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
Constitutional law — Charter of Rights — Criminal process
— Appeal from refusal of citizenship application pursuant to
s. 20(2) of Citizenship Act preventing grant of citizenship to
applicants convicted of indictable offence during three-year
period immediately preceding application — Appeal dismissed
— S. 20(2) not contrary to Charter s. 11(h) guaranteeing right
not to be tried or punished for indictable offence again if
finally found guilty — Re James and Law Society of British
Columbia (1982), /43 D.L.R. (3d) 379 (B.C.S.C.) establishing
s. 11 of Charter applying only in criminal proceedings —
Application for citizenship civil proceeding — Citizenship Act,
S.C. 1974-75-76, c. 108, s. 20(2) (as am. by S.C. 1977-78, c.
22, s. 8) — Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982. c. 11 (U.K.).
CASES JUDICIALLY CONSIDERED
APPLIED:
Re James and Law Society of British Columbia (1982),
143 D.L.R. (3d) 379 (B.C.S.C.).
CONSIDERED:
In re Lamb, 296 N.E.2d 280 (Ohio Ct. App. 1973);
Rosenbaum v. Law Soc. of Man., [1983] 5 W.W.R. 752
(Man. Q.B.); Belhumeur v. Discipline Ctee. of Que. Bar
Assn. (1983), 34 C.R. (3d) 279 (Que. S.C.).
REFERRED TO:
R. v. Wooten (1983), 5 D.L.R. (4th) 371 (B.C.S.C.);
Bowen v. Minister of Employment and Immigration,
[1984] 2 F.C. 507 (C.A.); R. v. Cole, [1980] 6 W.W.R.
552 (Man. Cty. Ct.).
COUNSEL:
Jean Parcigneau for appellant.
Pierre Paquette, amicus curiae.
SOLICITORS:
Jean Parcigneau, Montreal, for appellant.
Paquette, Nolan & Associés, Laval, amicus
curiae.
The following is the English version of the
reasons for judgment rendered by
DuaÉ J.: This is an appeal from a decision of a
judge of the Canadian Citizenship Court, dismiss
ing the appellant's application on the ground that
he was convicted of an indictable offence during
the three-year period immediately preceding the
date of his application, contrary to the provisions
of subsection 20(2) of the Citizenship Act [S.C.
1974-75-76, c. 108 (as am. by S.C. 1977-78, c. 22,
s. 8)].
At the hearing of this appeal, counsel for the
appellant alleged that section 20 of the Citizenship
Act constituted a breach of the legal guarantee
given to him by paragraph 1 1 (h) of the Canadian
Charter of Rights and Freedoms [being Part 1 of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)], which reads as
follows:
11. Any person charged with an offence has the right
(h) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again; ...
Counsel based his allegation primarily on
Lamb,' a decision of the Ohio Court of Appeal
that prisoners who have escaped and have already
been convicted and sentenced on this account
cannot be placed in punitive detention, since this
constitutes the imposition of a double penalty for
the same offence in breach of the Fifth and Four
teenth Amendments to the U.S. Constitution.
In Re James and Law Society of British
' 296 N.E.2d 280 (Ohio Ct. App. 1973).
Columbia,' the Court had to determine whether a
lawyer called before a disciplinary committee of
the Bar of his province could rely on paragraph
11(c) of the Charter (the right not to be compelled
to testify against oneself). The Court held that the
section in question applied only in criminal pro
ceedings: the disciplinary proceeding in question
was civil in nature.
Another lawyer whose conduct was drawn to the
attention of the disciplinary committee of the
Manitoba Bar as perjury, sought to obtain a writ
of prohibition against the said inquiry. In that case
(Rosenbaum v. Law Soc. of Man.),' the Court
held that the potentially serious consequences in
professional terms did not convert such a civil
proceeding into a criminal one, so as to make
section 11 of the Charter applicable: the latter
applies only to an offence.
Regarding another case before the Bar (Bel -
humeur v. Discipline Ctee. of Que. Bar Assn.), 4
flugessen J., now of the Federal Court of Appeal,
concluded as follows [at page 284]:
[TRANSLATION] In my view, the rights guaranteed by s. 11
are only guaranteed in connection with the exercise by the
State of the public right of prohibition and punishment. They
have nothing to do with private law or with the essentially civil
privileges conferred on the members of various professions.
The question at issue here also arose in an
immigration matter, and the courts have generally
held that paragraph 11(c) cannot be used to sup
port a refusal to testify in inquiries held in such
matters under the Immigration Act, 1976 [S.C.
1976-77, c. 52]. 5
The general purport of the Citizenship Act
clearly indicates that the proceeding by which an
individual asks the State to confer on him the
privilege of becoming one of its citizens is a civil
proceeding. The statute does not regard such a
person as someone charged with an offence, does
not try him again and does not punish him again.
2 (1982), 143 D.L.R. (3d) 379 (B.C.S.C.).
3 [1983] 5 W.W.R. 752 (Man. Q.B.).
° (1983), 34 C.R. (3d) 279 (Que. S.C.).
5 R. v. Wooten (1983), 5 D.L.R. (4th) 371(B.C.S.C.); Bowen
v. Minister of Employment and Immigration, [ 1984] 2 F.C.
507 (C.A.); R. y Cole, [1980] 6 W.W.R. 552 (Man. Cty. Ct.),
is the exception.
However, a criminal offence committed by such a
person has consequences for which he must
answer, just as a criminal may have caused physi
cal damage or injury to another and is so subject
to a civil suit in addition to a criminal prosecution.
One of the repercussions of the offence commit
ted by the appellant is the dismissal of his applica
tion for citizenship. By his own action he delayed
obtaining the privilege of becoming a Canadian
citizen. In other words, the dismissal of his
application for citizenship is not a second penalty
imposed on him but a civil consequence of his
indictable offence.
After all, Canada has the right to protect itself
by denying the privilege of citizenship to someone
who does not meet the criteria legitimately estab
lished by an Act of Parliament. It is quite just and
reasonable that no one should be able to receive
citizenship if during the three-year period immedi
ately preceding his application he has been con
victed of an offence or of an indictable offence
under any Act of Parliament.
The appeal is accordingly dismissed.
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.