Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39

Shortly before the hearing by this Court of an appeal from a decision setting aside an order to deport M and members of his family, counsel for M filed a motion for a permanent stay of proceedings. The motion was based on two grounds: an alleged abuse of power by the then Minister of Citizenship and Immigration and the current Minister of Justice, and an apprehension of bias on the part of this Court as a whole. It is alleged that, strongly influenced by Jewish individuals and organizations, the Ministers decided to appeal the Federal Court of Appeal’s judgment and have M deported at all costs. To this end, the current Minister of Justice allegedly plotted to have one of the two new members of the Court appointed. Despite the voluntary recusal of the judge in question, it is also alleged that the mere presence on the Court of a judge whose spouse chaired the War Crimes Committee of the Canadian Jewish Congress, an intervener in the case at bar, would impair the ability of the balance of its members to remain impartial.

Held: The motion should be dismissed.

The motion is unacceptable from every point of view. It constitutes an unqualified and abusive attack on the integrity of the judges of the Court and systematically refers to irresponsible innuendo. The only abuse of process from this motion lies at the feet of M and his counsel. The Minister availed himself of a recourse provided for by law in respect of a matter of public policy and was granted leave to appeal. This decision was made and endorsed by a succession of members of the federal cabinet at various stages in the proceedings. Bias on the Court’s part has not been established either. None of the judges who were scheduled to hear and have now heard the appeal were involved in the case. If there is a duty on the part of one member of our Court to recuse him or herself, it is an astounding proposition to suggest that the same duty automatically attaches to the rest of the Court or compromises the integrity of the whole Court. [14‑16]