Thank you dpenbill for your detailed answer. Leaving C 6 completly aside, one small clarification I need is that the govt has to either appeal or accept the federal court decision correct? They just cannot go about their businees as it never happened, correct? Sorry if I sound dense. I don't have a legal knowledge
Someone can correct me if I'm wrong, as I don't have an in-depth knowledge of the workings of Canadian law, however from what I've read around these boards, my understanding is that the government has 60 days to appeal that Federal district court decision. They have to either appeal it to the "Federal Appeals Court", or the current decision stands. But if they enact legislation that satisfies that decision (and I'm assuming the amendment by Sen. Omidvar in the Senate does that), I believe the issue will be moot. And by that, I mean if that amendment is accepted by the House and it becomes law, affording some form of "due process" that does not violate a naturalized citizen's rights under the Bill of Rights.
It is
NOT any where near so clear.
As I have referenced multiple times, Federal Court decisions have
limited precedent authority.
That is, it is
NOT clear that the Minister cannot proceed to revoke the citizenship of persons other than the eight individuals who are parties to the case Justice Gagné ruled upon. The decision is binding
for these eight individuals unless the government appeals and has the decision set aside or otherwise overruled. But it is not clear to what extent the government is bound by this decision in any other case.
That said, unlike the vast majority of Federal Court decisions involving IRCC, in this decision Justice Gagné in effect gave the government judicial notice that the Section 10 process violates the Canadian Bill of Rights and the offending provisions are, consequently, inoperative. And, indeed, Justice Gagné imposed five thousand dollars costs for
each of the individuals, signalling that similar costs would be imposed in future cases or perhaps even more might be imposed against the government.
So, as the activist lawyer Lorne Waldman expressed
hope for, perhaps the decision is strong enough to discourage the government from going ahead with other revocation cases, from employing the Section 10 procedure against persons other than the eight parties in this case.
Note the ruling explicitly states that the Minister is prohibited from applying subsections 10(3) and 10(4)
against the Applicants, and does not prohibit action against others.
So the question is whether paragraph 5 in the judgment itself (located near end of the decision), ruling that subsections 10(1), 10(3), and 10(4) are
inoperative, prohibits the Minister taking action against any persons other than these Applicants.
Some of the media reports suggest it does. But it really is not clear. As I previously noted, other Federal Court Justices have already ruled differently. Justice Gagné's ruling has no more force and effect generally than those decisions.
Thus, for example, getting back to what
747-captain observed:
". . . my understanding is that the government has 60 days to appeal that Federal district court decision. They have to either appeal it to the "Federal Appeals Court", or the current decision stands."
The question is
stands-for-what? It certainly stands for these eight individuals. Unless an appeal results in a different outcome, the Minister is prohibited from applying the procedure in Section 10 to
these individuals.
Otherwise, yes, as also observed by
747-captain, if Bill C-6 receives Royal Assent including the Senate amendment of the Section 10 procedure, that will have the effect of rendering the Justice Gagné decision moot. And, actually, it will have that effect regardless whether the revised procedure "satisfies that decision," since that decision only applies to the current version of Section 10 and does not prescribe what would be required to satisfy the procedural safeguards of the Canadian Bill of Rights.
Bottom-line:
-- the decision may have some influence on how the Liberal government handles Bill C-6, and in particular it may be an incentive to accept the Senate amendment to Bill C-6
-- the decision for sure affects the eight individuals party to the case, and prohibits the current procedure being used to revoke their citizenship unless an appellate decision rules otherwise
-- the effect of the decision relative to other individuals, if not appealed, is NOT clear; the strong wording of the decision should discourage the government from proceeding in other cases but does not necessarily prohibit the government from doing so
Caveat: there may be a substantial difference between what the decision legally compels and what it practically compels.
While I have been diligently reading and researching immigration and citizenship related Canadian law, in some depth, for nearly a decade now, in contrast I have four decades of (in many ways conflicting) experience in non-Canadian jurisprudence influencing my thinking and, frankly, there are some very different influences and approaches to interpretation and application in Canadian law which make it difficult for me to grasp the force and effect given certain nuances in interpretation here, which is more about the practical impact than it is what is technically the legal import. In the other topic about this decision, for example, I drilled some into the difference between what "due process" means in Canadian jurisprudence versus what it means elsewhere, and that in particular it is very, very different from what due process means in the United States (biggest difference, but not the only difference, is that due process is a constitutionally guaranteed right in the U.S., whereas in Canada
due process is NOT a constitutional right (recognizing some Charter rights for persons charged with crimes that are similar to U.S. constitutionally guaranteed due process rights).
Final observation: make no mistake, there is NO chance this decision will terminate proceedings to revoke fraud on the grounds of misrepresentation. One way or another, the government will continue to exercise the authority to revoke citizenship for misrepresentation. At most, this will stall such proceedings pending final resolution of these issues, either judicially or legislatively.
