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Bill of Rights - s.2(e) Fair Hearing. Tan v. Canada (Citizenship and Immigration)
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act [SS: 'CA'], by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
The court considers whether the CA s.10 revocation provision violates the Canadian Bill of Rights, here s.2(e) ['right to a fair hearing in accordance with the principles of fundamental justice'] - particularly institutional bias:C. Did the Federal Court err in finding that section 10 of the Citizenship Act does not violate paragraph 2(e) of the Bill of Rights?
[69] Paragraph 2(e) of the Bill of Rights requires that parties to a proceeding before a tribunal or administrative body that determines individual rights and obligations be given a "“fair hearing in accordance with the principles of fundamental justice”": Authorson v. Canada (Attorney General), 2003 SCC 39 at paras. 58-59 (Authorson). Paragraph 2(e) is one of two provisions of the Bill of Rights that remains operative following the enactment of the Charter, the other being paragraph 1(a): Authorson at para. 34. A statute that fails to comply with the requirements of paragraph 2(e) will be declared inoperative: Northwest Territories v. Public Service Alliance of Canada, 2001 FCA 162; MacBain v. Lederman, 1985 CanLII 5548 (FCA), [1985] 1 FC 856 at p. 882-883, citing The Queen v. Drybones, 1969 CanLII 1 (SCC), [1970] SCR 282.
[70] The text of paragraph 2(e) is as follows:"Construction of law"
"Interprétation de la législation"
"2 Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to"
"2"" Toute loi du Canada, à moins qu’une loi du Parlement du Canada ne déclare expressément qu’elle s’appliquera nonobstant la Déclaration canadienne des droits, doit s’interpréter et s’appliquer de manière à ne pas supprimer, restreindre ou enfreindre l’un quelconque des droits ou des libertés reconnus et déclarés aux présentes, ni à en autoriser la suppression, la diminution ou la transgression, et en particulier, nulle loi du Canada ne doit s’interpréter ni s’appliquer comme"
"…"
"[…] "
"(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations"
"e)"" privant une personne du droit à une audition impartiale de sa cause, selon les principes de justice fondamentale, pour la définition de ses droits et obligations;" [71] Four conditions must be met for paragraph 2(e) to apply to the citizenship revocation regime of the Citizenship Act:1. the person must be a “person” within the meaning of paragraph 2(e);
2. the revocation process must constitute a “hearing […] for the determination of [the person’s] rights and obligations”;
3. the revocation process must be found to violate the principles of fundamental justice; and
4. the alleged defect in the revocation process must arise as a result of a law of Canada which has not been expressly declared to operate notwithstanding the Bill of Rights.
[Canadian National Railway Company v. Western Canadian Coal Company, 2007 FC 371 at para. 22.] [72] The parties have not appealed the Federal Court’s finding that the citizenship revocation regime of the Citizenship Act meets conditions 1, 2 and 4 and I see no error in that finding. Ms. Tan is a person within the meaning of paragraph 2(e), the citizenship revocation process is a hearing that determines Ms. Tan’s right to citizenship, and the Citizenship Act is a law of Canada and contains no declaration that it operates notwithstanding the Bill of Rights.
[73] The sole condition at issue in this appeal is the third: whether the citizenship revocation process established in section 10 violates the principles of fundamental justice.
[74] A person facing revocation of their Canadian citizenship is owed a high degree of procedural fairness: Hassouna at para. 85, relying on Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at paras. 23, 31 (Baker). A decision to revoke can only be described as hugely important to the affected person, fundamentally affecting their status and life in Canada. The person not only loses their status as a Canadian citizen, they may also, as in Ms. Tan’s case, lose their status as a permanent resident and be rendered stateless under the IRPA. It is clear that the person must be afforded "“a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly ""considered”": Baker at para. 32.
[75] Before turning to Ms. Tan’s arguments, it is useful to summarize the relevant amendments made to the Citizenship Act in 2018. First, the Minister must now give notice of "“the specific grounds and reasons, including reference to materials, on which the Minister is relying to make his or her decision”": paragraph 10(3)(c). The prior version of this provision required only that the person be informed of the grounds on which the Minister would rely. Second, either the Minister or the Federal Court, at the citizen’s election, may determine that a person has obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances: paragraph 10(3.1)(b) and subsection 10.1(1). Previously, the person had no recourse to the Federal Court. Lastly, the Minister may grant special relief from revocation in consideration of the citizen’s personal circumstances in all cases in which the person makes representations requesting such relief: subsections 10(3.1) and (3.2) and subparagraph 10(4.1)(a)(ii).
[76] The availability of a hearing before the Minister is unchanged since Hassouna: subsection 10(4); section 7.2 of the Regulations. An oral hearing is, of course, available in every case in which the Federal Court is the decision maker.
[77] The Federal Court in Hassouna held:[91] In order for the revocation process to be procedurally fair, the applicants ought to be entitled to: (1) an oral hearing before a court, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met; and (3) the right to an impartial and independent decision maker. None of these are guaranteed under the [2015 Citizenship Act]. At paras 83-102 the court considers the Bill of Rights s.2(e) ['fair hearing'] issue from the perspective of 'institutional bias', the right to disclosure and to an oral hearing - concluding:(4) Summary: Paragraph 2(e) of the Bill of Rights
[102] I find that the citizenship revocation process set out in section 10 of the Citizenship Act complies with the requirements of paragraph 2(e) of the Bill of Rights. The section 10 revocation regime, read with the provisions of section 10.1 and the availability of an action before Federal Court, safeguards a person’s right to a fair hearing, to know and meet the case against them, and to be heard, orally or in writing, all in accordance with the principles of fundamental justice. Whether revocation is determined by the Minister or the Federal Court, a person’s submissions regarding personal circumstances, and whether those circumstances warrant special relief from revocation, must in every case be considered by the Minister. There is no tacit encouragement in the legislation for an affected person to forego the judicial process and its guarantees of independence, full disclosure and an oral hearing.
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