Date: 20060929
Docket: T-234-04
Citation: 2006 FC 1161
Ottawa, Ontario, September 29, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
YURI
DINABURGSKY
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Yuri Dinaburgsky, the defendant, is 51 years old. He was born on February 3,
1955 in Bobruisk, Belarus,
formerly known as the Belorussian Soviet Socialist Republic (Belorussian
SSR). Mr. Dinaburgsky is Jewish, and fled the Belorussian SSR because of
discrimination and persecution against Jews. He came to Canada as a permanent
resident on March 21, 1989 with his wife and two year old daughter. He became a
Canadian citizen on November 9, 1994. He has resided in Canada for the past
17 years.
[2]
The
plaintiff seeks a declaration that:
1. the defendant obtained his Canadian citizenship
by false representation or fraud or by knowingly concealing material
circumstances because he failed to disclose his past criminal convictions
outside of Canada when he applied for permanent residence in Canada; and
2. the defendant was lawfully
admitted to Canada for permanent residence by false representation or fraud or
by knowingly concealing material circumstances and, because of that admission, he
subsequently obtained citizenship, thereby engaging the deeming provision of
subsection 10(2) of the Citizenship Act, R.S.C. 1985, c. C-29.
[3]
Subsections10(1)
and (2) of the Citizenship Act read as follows:
|
PART II LOSS OF CITIZENSHIP
[…]
Order in cases of fraud
10. (1) Subject to section 18 but
notwithstanding any other section of this Act, where the Governor in Council,
on a report from the Minister, is satisfied that any person has obtained,
retained, renounced or resumed citizenship under this Act by false
representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be
a citizen, or
(b) the renunciation of
citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by
order of the Governor in Council with respect thereto.
Presumption
(2) A person shall be deemed to have
obtained citizenship by false representation or fraud or by knowingly
concealing material circumstances if the person was lawfully admitted to
Canada for permanent residence by false representation or fraud or by
knowingly concealing material circumstances and, because of that admission,
the person subsequently obtained citizenship.
|
PARTIE II PERTE DE LA CITOYENNETÉ
[…]
Décret en cas de fraude
10. (1) Sous réserve du seul article 18,
le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du
ministre, que l'acquisition, la conservation ou la répudiation de la
citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime
de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la
dissimulation intentionnelle de faits essentiels, prendre un décret aux
termes duquel l'intéressé, à compter de la date qui y est fixée:
a) soit perd sa citoyenneté;
b) soit est réputé ne pas
avoir répudié sa citoyenneté.
Présomption
(2) Est réputée avoir acquis la
citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de
faits essentiels la personne qui l'a acquise à raison d'une admission légale
au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
|
Background
Past criminal
convictions outside of Canada
[4]
Mr.
Dinaburgsky admits that he was convicted of crimes in the Belorussian SSR
before he was granted permanent residence or citizenship in Canada.
Specifically, the defendant was convicted under the Criminal Code of the
Belorussian SSR (Belorussian Code):
(i) on September 11,
1973, of the attempted rape of a minor, the gang rape of a minor, theft and
attempted theft. The Mogilev
Oblast Court sentenced
him to 10 years of imprisonment in accordance with Articles 15(2), 39, 115(3),
141(1) and (2) of the Belorussian Code;
(ii) on March 13,1975, of
escaping from a correctional facility. The People’s Court of the City of Grodno
sentenced him to 3 more years of imprisonment in accordance with Article 15,
Part II, and Article 184, Part I of the Belorussian Code; and
(iii) on April 10, 1986,
for violating an administrative supervisory order made on February 10, 1985.
The Lenin District People’s Court of the City of Bobruisk sentenced him to 6 months of imprisonment
in accordance with Article 194-1, Part I of the Belorussian Code.
Permanent residence
application
[5]
On
December 6, 1988, the defendant applied for permanent resident status at the
Canadian Embassy in Rome, Italy, where he was interviewed by a visa officer on
January 23, 1989. The defendant was granted permanent resident status on March
21, 1989 when he arrived in Canada.
[6]
The
defendant was originally denied citizenship on July 12, 1993 because he did not
meet the language and knowledge requirements under section 5 of the Citizenship
Act, R.S.C. 1985, c. C-29, as amended.
[7]
The
defendant was charged with use of a stolen credit card, contrary to s. 342(1)
of the Criminal Code, theft under $1,000 contrary to s. 334(b) of the Criminal
Code, and one count of personation contrary to s. 403(b) of the Criminal
Code, on or before March 16, 1992 in Guelph, Ontario together with two
co-accused, which charges were not withdrawn against the defendant until after
the application for citizenship was made. He did not disclose these criminal
charges as required on his citizenship application.
[8]
The
defendant reapplied for citizenship on October 26, 1993. The application was
approved on October 24, 1994, and the defendant took the oath of citizenship on
November 9, 1994.
Canadian authorities
discover defendant’s past criminal convictions in Belarus
[9]
In
1999, the RCMP learned of Mr. Dinaburgsky’s past criminal convictions in the
Belorussian SSR. At that time the defendant was charged under the Criminal
Code with conspiracy to commit fraud, contrary to subsection 465(1) of the Criminal
Code, for participation in a criminal organization, contrary to subsection
467.1(1), and with conspiracy to traffic in a controlled substance, contrary to
paragraph 465(1)(c). On July 7, 2000, the defendant pleaded guilty to conspiring
to commit fraud and was sentenced to 15 months of imprisonment in Canada. The other
charges were withdrawn.
Notice in respect of
revocation
[10]
On
February 5, 2002, the Minister served Mr. Dinaburgsky with a Notice in respect
of revocation of citizenship dated January 14, 2002, alleging that the
defendant failed to disclose his past criminal convictions outside of Canada when he applied
for permanent resident status.
Referral to the
Federal Court
[11]
In
answer to the defendant’s request for referral on February 13, 2002, the
Minister referred this matter to the Federal Court by filing a statement of
claim on January 30, 2004.
Statement of Claim
[12]
By
statement of claim filed January 30, 2004, the plaintiff seeks a declaration
that the defendant has obtained Canadian citizenship by false representation or
fraud or by knowingly concealing material circumstances.
Relevant
Legislation
[13]
The
legislation relevant to this case is:
1. the Citizenship
Act, R.S.C. 1985, c. C-29;
2. the Immigration Act, R.S.C. 1985, c. I-2; and
3. the Criminal
Code, R.S.C. 1985, c. C-46.
The relevant
excerpts of these statutes are set out in Appendix “A” to these Reasons.
Legal framework for citizenship revocation
[14]
In
Canada (Minister of
Citizenship and Immigration) v. Skomatchuk, 2006 FC 994, [2006]
F.C.J. No. 1249 (QL), my colleague Madam Justice Judith Snider considered the legislation
governing citizenship revocation proceedings. In brief, the relevant
law is:
i. under subsection
10(2) of the Citizenship Act, R.S.C. 1985, a person is deemed to have
obtained his citizenship by fraud or by knowingly concealing material
circumstances if he was “lawfully admitted to Canada for permanent residence by
false representation or fraud or by knowingly concealing material circumstances”
and, because of that admission, subsequently obtained his citizenship;
ii. the Minister may
make a report to the Governor in Council that the defendant has obtained his
citizenship by false representation or fraud or by knowingly concealing
material circumstances. The Minister has the discretion whether or not to make
a report in such circumstances. If the Minister makes the report, and if
Governor in Council is then satisfied that the defendant obtained his
citizenship in such a manner, the defendant ceases to be a citizen;
iii. a decision made
by this Court under section 18 of the Citizenship Act, R.S.C. 1985 is
final and cannot be appealed; a decision of the Governor in Council may be
judicially reviewed;
iv. a defendant’s
substantive rights are governed by the legislation in force at the time
citizenship was acquired; and
v. the burden of proof
lies on the plaintiff Minister to establish on the civil standard of a balance
of probabilities that a defendant obtained Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances.
[15]
I
adopt the reasons of Snider J. in Skomatchuk, supra, and, in
particular, the paragraphs set out in Appendix “B” in which she more fully
explains the legislation governing citizenship revocation proceedings.
The
Issue
[16]
Did
the defendant obtain lawful admission to Canada for
permanent residence in 1989 by false representation or fraud or by knowingly
concealing material circumstances? If the answer is yes, subsection 10(2) of
the Citizenship Act deems the defendant to have obtained citizenship by
false representation or fraud by knowingly concealing material circumstances.
The
Evidence
[17]
The
evidence at this trial included facts and documents admitted in advance with
respect to:
i.
the
defendant’s criminal convictions in the Belorussian SSR;
ii.
the
authenticity of Court documents related to the convictions and sentences in the
Belorussian SSR; and
iii.
the
defendant’s application for permanent residence dated January 23, 1989 , in
which he indicated that he had not ever been convicted of any crime or offence.
[18]
Three
witnesses testified at trial:
1.
Ms.
Diane Burrows, a visa officer;
2.
the
defendant, Mr. Yuri Dinaburgsky; and
3.
the
defendant’s wife, Mrs. Svetlana Dinaburgsky,.
Evidence of Ms. Diane
Burrows, the Visa Officer in Rome who interviewed the
defendant
[19]
Ms.
Burrows, the plaintiff’s only witness, was the visa officer in Rome who
interviewed the defendant on January 23, 1989 concerning his application for
permanent residence in Canada under the Eastern European “Self-Exiled
Class” Program. This class is for self-exiled persons (mostly Jews) from communist
regimes in Europe and the USSR.
[20]
Ms.
Burrows, now a senior officer with the Department of Citizenship and
Immigration, has been an immigration officer for 20 years. Ms. Burrows
testified that her usual practice when recording applicants’ answers is to put
a “check-mark” in the appropriate “Yes” or “No” box that corresponded to the
question on the application form. Ms. Burrows would then sign her initials “DB”
and the date of the interview next to the “check-mark”. As an evidentiary
issue, testimony concerning one’s usual practice is admissible and corroborative
of evidence of conduct in a specific case: see, for example, Savoie
v. Bouchard, [1983] N.B.J. No. 66; (1983), 49 N.B.R. (2d) 424 at paragraphs 27-37 (N.B.C.A.).
[21]
Ms.
Burrows appeared to the Court to be a highly conscientious, thorough and dedicated
public servant. The Court finds, on the balance of probabilities, that her
evidence is probably true. I find as fact that Ms. Burrows had established a consistent
practice of recording applicants’ answers in the manner in which she testified and
that Ms. Burrows followed this practice when recording the defendant’s answers
during his interview in 1989.
[22]
Ms.
Burrows testified that she asked the defendant, “Have you ever been convicted
of any crime or offence?” and that the defendant replied, “No”. Ms. Burrows
put a “check-mark”, her initials “DB” and the date of the interview “23/1/89”
next to the corresponding field on the defendant’s application form. Ms.
Burrows testified that she put this “check-mark” with her initials and date to
confirm that she had asked the defendant this question and received the answer
shown on the application form. The defendant’s completed application was an
admitted document before the Court.
[23]
Ms.
Burrows testified that the Canadian government did not seek security clearance
certificates for persons applying for permanent residence under the “Self-Exiled
Class” Program. The Canadian Government did not contact the police in the defendant’s
country of origin because doing so could jeopardize the well-being of his
remaining family members.
[24]
Ms.
Burrows asked the applicant “Have you ever been convicted of any crime or offence”
and the applicant answered, “No”. That is an important question because if the
answer was “Yes”, the applicant may not have been admissible to Canada.
[25]
Ms.
Burrows testified that if the defendant had answered that “he had troubles with
the law when he was young”, Ms. Burrows would not have “check-marked” the “No” box
in answer to the question, “Have you ever been convicted of any crime or offence.”
Rather, Ms. Burrows would have circled the answer to that question and
indicated that further investigation was needed to decide the issue. From the
evidence, it is clear to the Court that if the defendant had answered the
question truthfully, the visa officer would have asked other questions and investigated
whether these criminal convictions would make the defendant inadmissible. The
issue would have been whether the defendant’s status as a minor could overcome
criminal inadmissibility. This would have been explored by the visa officer.
There were other factors which could have been considered under Canada’s immigration
laws, but none of these were considered because the defendant answered “No” to
the question. Similarly, if the defendant had reported that he had been wrongly
convicted because of discrimination against Jews in the Belorussian SSR, Ms.
Burrows would have noted this on the application form as requiring further
investigation, and would not have “check-marked” the answer “No” and put her
initials and date next to that answer.
[26]
In
the cross-examination of Ms. Burrows, counsel for the defendant tried to
attribute this error to the Hebrew Immigration Aid Society (HIAS) in Rome,
because they were rushed in assisting people like the defendant, and because
they were processing 15,000 families annually from the Soviet Union and Eastern
Europe for immigration to the United States and Canada. The Court is satisfied
that this error cannot be attributed to the HIAS because there are so many
other responses on the defendant’s application form that are untrue. The defendant
provided false information with regard to his addresses, his employment, and
his education. During the material times, the defendant was not studying or
permanently residing at these addresses; rather, he was in prison.
Evidence of the
Defendant, Mr. Dinaburgsky
[27]
The
defendant testified in the Russian language with the aid of an excellent
interpreter.
[28]
Mr.
Dinabursgsky testified that when he told HIAS that he had problems with the law
under the age of 18, HIAS told him that there was no need to mention this
because he was a minor at the time. When he was interviewed by the visa officer,
he testified that he told her that he had convictions when he was young, and that
the visa officer said she would clarify if these convictions were necessary to
pursue. He testified that the visa officer said “if necessary, we will call you
back”.
[29]
Under
cross-examination, the defendant testified that he was released from prison in
August 1986. A few months later, he applied for permanent residence, and was
interviewed by HIAS on December 1, 1988. He had just served six months in prison.
Before that, he was in prison from 1973 to 1985. There is no mention of these prison
terms on the application form. He agreed under cross examination that large
parts of his application for permanent residency were untrue, particularly with
respect to his addresses for the previous ten years, his education, his
employment history, and his criminal convictions. He said that he had “no
choice” but to provide these untrue answers. The Court is satisfied that the visa
application, on a number of important questions, is untrue, and that the defendant
admitted that he had “no choice” because if he completed the questions
truthfully he would not have been able to immigrate to Canada.
[30]
The
defendant says that HIAS completed the application form without asking him any
questions, in particular, HIAS did not ask him whether he had ever been
convicted of a criminal offence. The defendant testified that the only question
HIAS asked him was where was it that he wanted to go: USA, Canada, or Israel. This answer
is inconsistent with the answer he gave at his examination of discovery on
December 14, 2004. According to p. 67, question 304 in the transcript, the
defendant testified as follows:
Q. Thank you. Now, as I
understand your evidence from last time, you were asked whether you had a – you
were asked by the HIAS interpreter whether you had a criminal offence?
A. He asked me questions which
were contained [in??] the application form. If that question was there, that’s
the question he asked.”
[31]
Under
cross-examination before the Court, Mr. Dinaburgsky admitted that some of his
answers on his application for permanent residence were lies. In his viva
voce evidence, he changed his excuse for the lies from the excuse given at
the examination for discovery. It is clear to the Court that material information
in his application was false, and that he provided false information to the visa
officer, Ms. Burrows.
[32]
Mr.
Dinaburgsky said that he told the visa officer that he had “some trouble with
the law when he was young”. As discussed above, it is clear to the Court that
the visa officer, Ms. Burrows, would have noted this type of response and
investigated further. Accordingly, the Court finds this evidence of Mr.
Dinaburgsky not credible. The logical conclusion is that Mr. Dinaburgsky intentionally
lied about his places of residence, his employment, his education and his
previous criminal convictions. The Court is satisfied that Mr. Dinaburgsky did
not advise the visa officer that he had “some trouble with the law when he was young”
or that he was falsely charged and convicted because he was Jewish.
[33]
In
re-examination, Mr. Dinaburgsky admitted that he did not “advertise” that he
had been convicted and incarcerated. He testified that he was hiding his
conviction and running away from his country. He also testified in
re-examination that he had consensual group sex with the person whom he
allegedly raped, that he was wrongly charged and convicted, and that many Jews
are wrongly charged and convicted of rape.
Evidence of Mrs. Svetlana
Dinaburgsky
[34]
The
other witness for the defendant was the defendant’s wife, Mrs. Svetlana
Dinaburgsky. Her evidence was in the English language. She testified that the
HIAS sponsored Jewish immigrants and paid for their food and apartments while
fleeing.
[35]
The
Court was impressed with Mrs. Dinaburgsky. She is an optician and has an
excellent command of English. She introduced into evidence a newspaper article
from Minsk written
about Mr. Dinaburgsky’s allegedly wrongful conviction. This article is referred
to below.
[36]
Mr.
and Mrs. Dinaburgsky have three daughters, a daughter born in Belarus on
October 2, 1986 who came to Canada with Mr. and Mrs. Dinaburgsky, and twin
daughters who were born in Canada on May 25, 1990.
[37]
Mrs.
Dinaburgsky testified that she was eager to leave the Belorussian SSR because
she experienced anti-Semitism. She had been called a “dirty Jew” and felt like
a second class citizen in Belarus. She met Mr.
Dinaburgsky after he was released from prison in 1986. She fell in love with
him and became pregnant. Mr. Dinaburgsky was then sentenced to prison for six months
for administrative violations of his parole. She went to the attorney for the city
of the Bobruisk, said that she
wanted to marry Mr. Dinaburgsky, and asked why he was in jail. The attorney
said that he was going to be in jail for the rest of his life and that she
should get an abortion and say that Mr. Dinaburgsky raped her. Instead, she
married Mr. Dinaburgsky while he was in jail because she was in love and
pregnant with his child.
[38]
Mrs.
Dinaburgsky testified that her older sister was the same age as Mr.
Dinaburgsky. Her sister and her mother knew Mr. Dinaburgsky and had assured her
that five Jews were falsely charged with rape because they were Jews, and that
the Jewish people in Bobruisk knew this at the time.
She testified that Mr. Dinaburgsky has been a great husband, good father and good
friend with Mrs. Dinaburgsky’s mother, who lived with them in Canada for 13
years. She said that Mr. Dinaburgsky has never been abusive to her or
demonstrated any improper conduct toward her. Mrs. Dinaburgsky said that the
RCMP had a “vendetta” against her husband. Mrs. Dinaburgsky knew that her husband
had been charged and convicted of rape, but she knew that the charges and
convictions were false and wrongful.
[39]
She
testified that the HIAS interview in Rome was disorganized. The
Russian interpreter was poorly skilled. The Russian interpreter said at the
interview with HIAS that they were told not to worry about a criminal record at
17 years of age, and that Mr. Dinaburgsky need not disclose his convictions as
a minor.
[40]
The
RCMP investigation which led to the uncovering of these criminal convictions
against Mr. Dinaburgsky in Belarus emanated from criminal
charges against Mr. Dinaburgsky. In 1999, three charges under the Criminal
Code were laid against Mr. Dinaburgsky, two of which were withdrawn. Mr.
Dinaburgsky pleaded guilty to one charge and served 15 months in a Canadian
prison.
The Newspaper Article
[41]
Mrs.
Dinabursky introduced into evidence an undated article from a newspaper
entitled “The Week” from the city of Minsk, the capital of Belarus. She
testified that she had the newspaper article before she came to Canada.
Accordingly, the article must be dated prior to 1989, and probably coincided
with a time when the defendant was incarcerated. The article is entitled “White
Threads on a Black Background”. The plaintiff did not object to its
authenticity. An original of the article was produced for the Court. The Court
is satisfied that this article was actually written and did appear in this
newspaper.
[42]
The
article states that the criminal rape charges against the defendant, his
brother and others were based on fabricated evidence by “an investigating
agency of Bobruisk”, the city in which the defendant and his brother lived. The
article states that the alleged attempted rape victim did not report this attempted
rape until three years after the incident. The article rhetorically questions
“did she forget?”, and then answers the rhetorical question, “now she has
remembered or actually it was not she who remembered, but one Detective
Posdnyak who actually called and reminded her”.
[43]
The
article sarcastically continues, “recollection is a contagious thing”. The rape
victim also remembered that approximately one year before the trial she had been
raped by friends and relatives of the Dinaburgskys, and at one time she had
been raped by all of them together.
[44]
The
article reports that the victim confused names and details of the events, that the
Court noted falsehoods in her testimony, and that the Court accepted testimony
of other people about the victim’s promiscuous lifestyle.
[45]
The
article continues about the defendant’s brother, an adult, and how the
defendant, then an adolescent, was brought to his brother’s cell and beaten “so
hard that it caused internal injuries and his teeth were knocked out”. The
defendant’s brother wrote numerous requests and protests to organizations such
as The Kremlin, human rights organizations, and Amnesty International, but they
all said they had no jurisdiction.
[46]
This
newspaper article corroborates the stated belief of Mrs. Dinaburgsky that the
allegations of attempted rape and gang rape against the defendant were based on
fabricated evidence and are not true.
The
Belorussian
SSR Court
Documents
1. The Reasons for
Verdict of the Judicial Board on Criminal Cases of the Mogilev Oblast Court dated September 11, 1973
[47]
This
17-page “Verdict” sets out the evidence and findings of guilt against five
persons accused of gang rape, including the defendant. I have reviewed this
document and find that it is reasonably comprehensive, clear and credible. It
reflects the foreign court’s consideration and rendition of the evidence
against the defendant.
[48]
The
defendant’s first crime of the defendant took place on April 26, 1970. It was an
attempted rape. The defendant was 15 years old at the time.
[49]
The
second crime took place on December 2, 1972 and the third crime on the day
after, December 3, 1972. The defendant was found guilty of gang rape. The
defendant was 17 years old at that time. The defendant pleaded not guilty to
these charges. He said that he had only wanted to kiss the lady whom he was
accused of attempting to rape, and that he had engaged in consensual group sex
with the person against whom he was alleged to have committed gang rape.
[50]
The
court recited the evidence upon which it concluded that the defendant was
guilty of these crimes. The defendant was also found guilty of theft of a watch
and the attempted theft of a wallet.
[51]
The
defendant was sentenced to ten years in prison. He was not tried as a juvenile.
There was no evidence led with respect to whether there was a juvenile court in
the Belorussian SSR at that time, or, if there was, what were the circumstances
leading to the defendant being tried in adult court.
2. The second Verdict in 1975
[52]
The
second “Verdict” was registered against the defendant on March 13, 1975 for the
crime of attempting to escape from prison on December 10, 1974. At that time,
the defendant was 19 years old. For this crime he was sentenced to three years in
prison, in addition to his ten year sentence.
3.
The
third conviction in 1986
[53]
The
defendant was released from prison on February 9, 1985 after serving 12 years
of his 13 year sentence. He was released upon 12 months of administrative
supervision. He was twice found guilty of breaching the terms of his
conditional release, and on the third breach he was sentenced to six months
of imprisonment. That sentence began on February 28, 1986. The
defendant was released from prison on or about August 28, 1986.
Criminal Inadmissibility
[54]
The
defendant was first convicted in Belarus for crimes which he
committed, as a minor, at the ages of 15 and 17. Mr. Justice Muldoon in De
Freitas v. Canada (Minister of Citizenship and Immigration), [1998]
F.C.J. No. 1611 at paragraph 2, referring to the situation involving a minor
under the former Immigration Act, said:
…However, a youth convicted in adult
court does have a conviction within the meaning of the Immigration Act.
[55]
In
the case at bar, the defendant was convicted in adult court. When an order is
made in Canada transferring
charges from youth court to ordinary court in Canada, the youth
is not being tried for offences under the Young Offenders’ Act. A
conviction in adult court in Canada is a conviction with the meaning of the
inadmissibility provisions of the former Immigration Act, even if
the convicted person was a minor.
[56]
Under
subsection 19(1)(c) of the Immigration Act, no person shall be granted
admission to Canada who has been convicted of an offence that if committed in
Canada constitutes an offence that may be punishable under any Act of
Parliament and for which a maximum term of imprisonment of ten years or more
may be imposed.
[57]
Under
the Criminal Code, R.S.C. 1985, subsection 271(1)(a) provides that every
person who commits a sexual assault is guilty of an indictable offence and is
liable to imprisonment for a term not exceeding ten years. Accordingly, the
defendant, having been convicted of attempted rape and gang rape in Belarus,
had been convicted of an offence that if committed in Canada may be
punishable with a maximum of imprisonment of ten years. This means that the
defendant was prima facie inadmissible to Canada as a
permanent resident in 1989.
[58]
Canada does not
allow persons convicted of serious criminal offences to become permanent
residents. It is not the role of the Court to condone or forgive persons who
misrepresent or conceal material facts about their past serious criminality.
That is a decision for only the Minister of Citizenship and Immigration and the
Governor in Council. Nor is it the Court’s role to determine whether, as a
matter of policy, it is appropriate to render stateless citizens of Canada who choose
not to disclose criminal convictions pre-dating their admission to Canada. That is a
decision left to Parliament acting through the Governor in Council.
Findings
of this Court
[59]
I
find, on the balance of probabilities that:
1. The
17-page verdict against the defendant dated September 11, 1973 is a
comprehensive, clear court document which reflects a trial, a verdict based on
evidence, the participation of defence attorneys for the defendant and the
other accused, and the examination of the evidence in an “in camera
court session” from August 29 to September 11, 1973;
2.
The
undated newspaper article corroborates the version of the defendant’s wife that
the verdict against the defendant was based on fabricated evidence and that his
conviction was wrongful. However, the allegations of the defendant’s wife and
this newspaper article are not more credible than the detailed verdict of the foreign
court. I cannot re-try the defendant based on self-serving allegations and a
newspaper article;
3.
The
appropriate time for the defendant and his wife to have explained that these
convictions were wrongful convictions based on allegedly fabricated evidence,
and motivated by anti-Semitism, was when the defendant and his wife were
interviewed by the visa officer in Rome. I cannot re-try the
defendant for these crimes 33 years after the verdict of the foreign court;
4.
The
evidence is clear that the defendant was 15 and 17 years old at the time he
committed the offences of which he was originally convicted. This might have
been a factor which the visa officer considered at the time of the interview in
January 1989 if the defendant had disclosed the convictions and that he was a
minor at the material time;
5.
The
defendant when asked by the visa officer in Rome whether he
had ever been convicted of any crime or offence answered “no”. Moreover, the
Court finds that the defendant did not respond that “he had troubles with the
law when he was young”. If he had, the Court is satisfied, on the balance of
probabilities, that the visa officer would have circled the answer to that
question and indicated that further investigation was needed. The Court is
satisfied that the visa officer would have asked a number of other questions
and undertaken further investigations to determine whether these criminal
convictions would or would not make the defendant inadmissible; and
6. The
defendant lied and concealed material information when interviewed by the visa
officer who approved him for entry into Canada. The
defendant gained admission to Canada for permanent residence by false
representation or fraud or by concealing material circumstances. Accordingly,
the defendant was not lawfully admitted to Canada, and
pursuant to subsection 10(2) of the Citizenship Act, the defendant is
deemed to have obtained citizenship by false representation or fraud or by
knowingly concealing material circumstances.
Costs
[60]
The
parties made no oral submissions at the trial with respect to costs. If the
plaintiff seeks costs, the plaintiff shall have three days to file submissions
regarding costs, the defendant shall have three days thereafter to respond, and
the plaintiff shall have three days thereafter to reply. If necessary, the
Court will issue a further Judgment with respect to costs.
JUDGMENT
THIS COURT ADJUDGES AND
DECLARES that:
1. The defendant
was lawfully admitted to Canada for permanent residence by false
representation or fraud or by knowingly concealing material circumstances; and
2. The defendant
obtained Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances, within the meaning of subsection 10(2) and paragraph
18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29.
“Michael
A. Kelen”
APPENDIX “A”
1. Citizenship
Act, R.S.C. 1985, c. C-29
|
PART II LOSS OF CITIZENSHIP
[…]
Order in cases of fraud
10. (1) Subject to section 18 but
notwithstanding any other section of this Act, where the Governor in Council,
on a report from the Minister, is satisfied that any person has obtained,
retained, renounced or resumed citizenship under this Act by false
representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be
a citizen, or
(b) the renunciation of
citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by
order of the Governor in Council with respect thereto.
Presumption
(2) A person shall be deemed to have
obtained citizenship by false representation or fraud or by knowingly
concealing material circumstances if the person was lawfully admitted to
Canada for permanent residence by false representation or fraud or by
knowingly concealing material circumstances and, because of that admission,
the person subsequently obtained citizenship.
[…]
PART V PROCEDURE
[…]
Notice to person in respect of
revocation
18. (1) The Minister shall not make a
report under section 10 unless the Minister has given notice of his intention
to do so to the person in respect of whom the report is to be made and
(a) that person does not,
within thirty days after the day on which the notice is sent, request that
the Minister refer the case to the Court; or
(b) that person does so
request and the Court decides that the person has obtained, retained,
renounced or resumed citizenship by false representation or fraud or by
knowingly concealing material circumstances.
Nature of notice
(2) The notice referred to in
subsection (1) shall state that the person in respect of whom the report is
to be made may, within thirty days after the day on which the notice is sent
to him, request that the Minister refer the case to the Court, and such
notice is sufficient if it is sent by registered mail to the person at his
latest known address.
Decision final
(3) A decision of the Court made under
subsection (1) is final and, notwithstanding any other Act of Parliament, no
appeal lies therefrom.
[…]
Prohibition
22. (1) Notwithstanding anything in this
Act, a person shall not be granted citizenship under section 5 or subsection
11(1) or take the oath of citizenship
[…]
(b) while the person is
charged with, on trial for or subject to or a party to an appeal relating to
an offence under subsection 29(2) or (3) or an indictable offence under any
Act of Parliament, other than an offence that is designated as a
contravention under the Contraventions Act;
[…]
|
PARTIE II PERTE DE LA CITOYENNETÉ
[…]
Décret en cas de fraude
10. (1) Sous réserve du seul article 18,
le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du
ministre, que l'acquisition, la conservation ou la répudiation de la
citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime
de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la
dissimulation intentionnelle de faits essentiels, prendre un décret aux
termes duquel l'intéressé, à compter de la date qui y est fixée:
a) soit perd sa citoyenneté;
b) soit est réputé ne pas
avoir répudié sa citoyenneté.
Présomption
(2) Est réputée avoir acquis la
citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de
faits essentiels la personne qui l'a acquise à raison d'une admission légale
au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
[…]
PARTIE V PROCÉDURE
[…]
Avis préalable à l'annulation
18. (1) Le ministre ne peut procéder à
l'établissement du rapport mentionné à l'article 10 sans avoir auparavant
avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre
des conditions suivantes ne se soit réalisée:
a) l'intéressé n'a pas,
dans les trente jours suivant la date d'expédition de l'avis, demandé le
renvoi de l'affaire devant la Cour;
b) la Cour, saisie de
l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou
dissimulation intentionnelle de faits essentiels.
Nature de l'avis
(2) L'avis prévu au paragraphe (1) doit
spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date
d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour.
La communication de l'avis peut se faire par courrier recommandé envoyé à la
dernière adresse connue de l'intéressé.
Caractère définitif de la décision
(3) La décision de la Cour visée au
paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale,
non susceptible d'appel.
[…]
Interdiction
22. (1) Malgré les autres dispositions de
la présente loi, nul ne peut recevoir la citoyenneté au titre de l'article 5
ou du paragraphe 11(1) ni prêter le serment de citoyenneté:
[…]
b) tant qu'il est inculpé
pour une infraction prévue aux paragraphes 29(2) ou (3) ou pour un acte
criminel prévu par une loi fédérale, autre qu'une infraction qualifiée de
contravention en vertu de la Loi sur les contraventions, et ce, jusqu'à la
date d'épuisement des voies de recours;
[…]
|
2. Immigration
Act, R.S.C. 1985, c. I-2
|
Inadmissible persons
19. (1) No person shall be granted admission who is a member of any of the
following classes:
[…]
(c) persons who have been convicted in Canada of an
offence that may be punishable under any Act of Parliament by a maximum term
of imprisonment of ten years or more;
|
Personnes non admissibles
19. (1) Les
personnes suivantes appartiennent à une catégorie non admissible:
[…]
c) celles qui ont
été déclarées coupables, au Canada, d'une infraction qui peut être
punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal
ou supérieur à dix ans;
|
3. Criminal
Code, R.S.C. 1985, c. C-46 [eff November 9, 1994]
|
PART VIII
OFFENCES AGAINST THE PERSON AND REPUTATION
Assaults
Sexual assault
271. (1) Every one who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment
for a term not exceeding ten years; or
(b) an offence punishable on summary conviction.
[…]
PART
IX OFFENCES AGAINST RIGHTS OF PROPERTY
[…]
Punishment
for theft
334.
Except where otherwise provided by law, every one who commits theft
(a) is guilty of an indictable offence
and liable to imprisonment for a term not exceeding ten years, where the
property stolen is a testamentary instrument or the value of what is stolen
exceeds one thousand dollars; or
(b) is guilty
(i) of an indictable offence and is
liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on
summary conviction,
where
the value of what is stolen does not exceed one thousand dollars.
|
PARTIE VIII INFRACTIONS CONTRE LA
PERSONNE ET LA
RÉPUTATION
Voies de fait
Agression sexuelle
271. (1) Quiconque commet une agression sexuelle est
coupable:
a) soit d'un acte
criminel et passible d'un emprisonnement maximal de dix ans;
b) soit d'une
infraction punissable sur déclaration de culpabilité par procédure sommaire.
[…]
PARTIE IX INFRACTIONS CONTRE LES
DROITS DE PROPRIÉTÉ
[…]
Punition du vol
334. Sauf disposition contraire des lois,
quiconque commet un vol:
a) est coupable d'un acte
criminel et passible d'un emprisonnement maximal de dix ans, si le bien volé
est un titre testamentaire ou si la valeur de ce qui est volé dépasse mille
dollars;
b) est coupable:
(i) soit d'un acte criminel
et passible d'un emprisonnement maximal de deux ans,
(ii) soit d'une infraction
punissable sur déclaration de culpabilité par procédure sommaire,
si la valeur de ce qui est volé ne
dépasse pas mille dollars.
|
APPENDIX “B”
Excerpts
from the reasons of Snider J. in Skomatchuk, supra, in which she
explains the legislation governing citizenship revocation proceedings.
III. Legal Framework
A. Procedural Rights
[ …]
(1) Section 10(1) of the Citizenship Act,
1985
¶ 10 Pursuant to s. 10(1) of this
Act, the Minister may make a report to the Governor in Council to the effect
that a person has obtained their citizenship "under this Act" by
false representation or fraud or by knowingly concealing material
circumstances. If the Governor in Council is then satisfied that the person
obtained their citizenship in such a manner, "the person ceases to be a citizen".
[ …]
(2) Deeming Provision of s. 10(2) of the
Citizenship Act, 1985
¶ 12 It may be the case that a
person did not directly lie or conceal information at the time of obtaining
Canadian citizenship but did so to the overseas immigration officer who
approved him for entry into Canada. This situation is addressed
in s. 10(2). Pursuant to this provision, a person is deemed to have obtained
his citizenship by fraud or by knowingly concealing material circumstances if
he was "lawfully admitted to Canada
for permanent residence by false representation or fraud or by knowingly
concealing material circumstances" and, because of that admission,
subsequently obtained his citizenship.
(3) Section 18 Notice
¶ 13 Section 18 of the Act requires
that, before the Minister makes a report to the Governor in Council, he must
give notice of his intention to do so to the person concerned. That person may
then request that the question of whether he obtained his citizenship by false
representation or fraud or by knowingly concealing material circumstances be
referred to this Court. If this Court decides in the positive, the Court's
decision will form the basis of the Minister's report.
¶ 14 In this proceeding, Notice
under s. 18 was signed by the Minister on November 13, 2004 and provided to Mr.
Skomatchuk. By Notice of Request, Mr. Skomatchuk requested that the Minister
refer this case to the Federal Court.
(4) Effect of Court's Determination under
s. 18
¶ 15 The Court's determination does not,
in itself, constitute a decision to revoke or terminate the citizenship of a
person. Rather, the decision of this Court provides the Minister with a factual
basis for the report and may constitute the foundation of a decision of the
Governor in Council. Only the Governor in Council has the duty and power to
decide whether to revoke citizenship. While the decision made by this Court
under s. 18 is final and cannot be appealed (Citizenship Act, 1985, s. 18(3)),
a decision of the Governor in Council may be judicially reviewed (see for
example, Oberlander v. Canada (Attorney General), 2004 FCA 213, [2004] F.C.J.
No. 920 (QL)).
B. Substantive Rights
[ …]
(2) Meaning of "lawfully
admitted"
¶ 18 To establish what is meant by
the term "lawfully admitted", I must turn to the Immigration Act,
1948. In s. 2(n), "landing" is defined as "the lawful admission
of an immigrant to Canada for permanent
residence".
¶ 19 For admission to Canada, an
individual was required to undergo an examination before an immigration officer
to determine whether he "is or is not admissible to Canada" (Immigration Act, 1948,
s. 20(1)). Section 20(2) requires that the person "shall answer truthfully
all questions put to him ... and failure to do so ... shall, in itself, be
sufficient ground for deportation". Of further interest is s. 50(f) which
stipulated that every person who "knowingly makes any false or misleading
statement at an examination or inquiry under this Act or in connection with the
admission of any person to Canada or the application for
admission by any person" was guilty of an offence under the Immigration
Act, 1948.
¶ 20 In sum, the scheme in 1957 was
clear; misrepresentation during the examination for landing was not to be
condoned. A person who lied or withheld material facts from the immigration
officers before whom he appeared for examination was not "lawfully
admitted" to Canada (Canada (Minister of
Citizenship and Immigration) v. Bogutin, [1998] F.C.J. No. 211 (QL) (F.C.T.D.)
at para. 126) and, thus, was in breach of the Citizenship Act, 1948. (Underlining
added by Kelen J.)
C. Burden and Standard of Proof
¶ 21 The burden of proof clearly
rests with the plaintiff Minister.
[ …]
¶ 24 Thus, it is well established
that, for a proceeding of this nature, the standard of proof is the civil
standard of balance of probabilities. In a case, such as this, however, where
the allegations of conduct are morally blame-worthy and have serious
consequences for the defendant, the jurisprudence teaches that I take great
care in assessing the evidence (see, for example Odynsky, above at para. 13).
¶ 25 The balance of probabilities
standard will be met if the Court is satisfied, on the evidence, that the
existence of a fact in dispute is more probable than not. In other words, based
on the evidence before this Court, I must find that the event or fact in
dispute is not only possible but probable (Obodzinsky, above at paras. 8-9). In
this context of serious allegations and consequences for the individual, the
inherent probability or improbability of an event is itself a matter to be
taken into account (Re H (minors), [1996] A.C. 563 (H.L.)).
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