Date: 20031009
Docket: T-1379-01
Citation: 2003 FC 1172
IN THE MATTER OF revocation of citizenship pursuant to
sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended
AND IN THE MATTER OF a request for reference to the Federal Court
pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended
AND IN THE MATTER OF a reference to the Court pursuant to
Rule 920 of the Federal Court Rules
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Plaintiff,
- and -
KRZYSZTOF WYSOCKI,
Defendant.
REASONS FOR ORDER
LAYDEN-STEVENSON J.
[1] The Minister of Citizenship and Immigration (the Minister) issued a notice to Mr. Wysocki regarding revocation of citizenship. The notice informed Mr. Wysocki of the Minister's intention to make a report to the Governor in Council that Mr. Wysocki obtained Canadian citizenship by false representation or fraud or by concealing material circumstances. Specifically, the Minister alleged that Mr. Wysocki failed to divulge that he was charged with an indictable offence between the time he applied for citizenship and the time he took the oath of citizenship. Mr. Wysocki requested that the matter be referred to the court.
BACKGROUND
[2] Mr. Wysocki was born in Poland on July 9, 1964 and acquired permanent residence status in Canada on July 31, 1990. On November 14, 1994, he applied for Canadian citizenship. The Minister and Mr. Wysocki agree that the application for citizenship probably included a warning that Canadian citizenship shall not be granted or oath of citizenship taken while an applicant is charged with an offence under the Criminal Code or an indictable offence under any Act of Parliament. They also agree that on May 2, 1995, Mr. Wysocki signed a document, before a citizenship official, stating that he had not been subject to immigration or criminal proceedings since filing his application.
[3] On May 3, 1995, Mr. Wysocki was charged with the indictable offence of sexual assault under section 271 of the Criminal Code. The maximum sentence for this offence is a prison term not exceeding ten years. On May 11, 1995, a citizenship judge approved Mr. Wysocki's application for citizenship. The judge did not know about the criminal charge because Mr. Wysocki did not inform citizenship officials of its existence. The parties agree that the application was approved on the basis of a misapprehension.
[4] On June 12, 1995, Mr. Wysocki took the oath of citizenship and became a Canadian citizen. In 1996, he was found guilty of sexual assault and was sentenced to one year imprisonment and three years probation. He was prohibited from possessing firearms, ammunition or explosive substances for 10 years.
RELEVANT STATUTORY PROVISIONS
| Citizenship Act,
R.S.C. 1985, c. C-29
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.
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Loi sur la citoyenneté,
L.R.C. 1985, ch. C-29
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.
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| 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.
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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.
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| (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.
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(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.
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| (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
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(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
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| 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
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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_:
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| (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;
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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;
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THE ISSUE
[5] Narrowly defined, the issue is whether Mr. Wysocki knowingly concealed his pending criminal charge at the time he took the oath of citizenship.
THE EVIDENCE
[6] The parties submitted a joint book of exhibits and each party called one witness. The Minister called Nicole Campbell, a citizenship officer from 1994 until 1997, whose role was to interview applicants and verify their documentation. Ms. Campbell reviewed Mr. Wysocki's application with him and witnessed his signature. She had no independent recollection of Mr. Wysocki, but stated that her procedure in interviewing applicants was always the same. Ms. Campbell testified that, unless a residency calculation was required, interviews lasted approximately fifteen minutes. It was her practice to go through each section of the application with an applicant. She spent more time on some sections than on others. When it came to section G, she read it aloud to applicants. That section contains, among other things, the following warning:[...]
Canadian citizenship shall not be granted or the oath of citizenship taken if the person ...
(d) is charged with, on trial for, subject to or party to an appeal relating to an offence under the Citizenship Act, a war crime or a crime against humanity under the Criminal Code or an indictable offence under any Act of Parliament ...
[7] Ms. Campbell said she paid particular attention to the prohibitions set out in section H of the application because of their significance and potential impact regarding an applicant. Rather than simply read through the various prohibitions, she made sure that each of them was defined and explained in plain and simple language. Mr. Wysocki's application contained Ms. Campbell's initials at the end of section H. She stated that her initials indicate to her that she had reviewed each of the prohibitions, as described, with him.
[8] Section I, item 18 of the application contains the following attestation:
18. I am aware that if under any Canadian law I am charged with an indictable offence or put on probation before I take the oath of citizenship I must notify a citizenship official.
I understand the content of this application and the statements made herein are true and correct.
[9] Mr. Wysocki's and Ms. Campbell's signatures appear immediately below item 18. There is no dispute that, at the time of his application on November 14, 1994, Mr. Wysocki's responses on his application were correct.
[10] Ms. Campbell referred to the Prohibitions Form that had to be submitted, by every applicant, at the time the citizenship test was written. She said that extensive instructions were given to applicants at test time. They were told that if there was anything they did not understand, they should speak to a citizenship officer. They were also told that they could do so in private. The opportunity to ask questions was provided both before and after the taking of the citizenship test. She also referred to the form entitled Citizenship Application Review and explained that it provides a summary of an applicant's citizenship application. In Mr. Wysocki's case, it shows that he answered seventeen of the twenty citizenship test questions correctly. His Citizenship Application Review document is dated May 8, 1995. By this time, he had been charged with sexual assault, but as stated earlier, citizenship officials were not aware of this.
[11] After his application was approved on May 11, 1995, correspondence was forwarded to Mr. Wysocki advising him of the date, time and place of the oath-taking ceremony. A Notice to Appear To Take The Oath Of Citizenship was included with the correspondence. Ms. Campbell testified that this information would have been sent two weeks before the actual ceremony. The notice addressed to Mr. Wysocki contained a Warning that stated, among other things, [...]
Canadian citizenship shall not be granted or the oath of citizenship taken if the person: (a) is under a probation order; (b) is a paroled inmate; (c) is confined in a penal institution; (d) is charged with, on trial for, subject to or party to an appeal relating to an offence under the Citizenship Act, a war crime or crime against humanity under the Criminal Code or an indictable offence under any Act of Parliament; (e) is under investigation for a war crime or a crime against humanity; (f) requires but has not obtained the consent of the Minister of Citizenship and Immigration to be admitted to and remain in Canada as a permanent resident; or (g) ceased to be a Canadian citizen under subsection 10(1) of the Citizenship Act during the five years immediately before the date of this application.
[12] The notice also specified that Mr. Wysocki should bring his notice with him to the ceremony and if unable to appear, he should contact the citizenship court. Only good and sufficient cause, determined to be so by a citizenship judge within sixty days, could alleviate the necessity of filing a new application for failure to attend as scheduled.
[13] Mr. Wysocki testified on his own behalf. His evidence was that he married his wife in June, 1992. He has five children ranging from sixteen to five years of age. The oldest lives with him; the younger live with their mother in Victoria. Mr. Wysocki's wife left him in August, 2002. He described his family relations, at the time of his application for citizenship, as good. He stated that he completed his application, but his wife helped him with questions that he had difficulty understanding because his English was "not very good" then.
[14] Mr. Wysocki has no recollection of reading the warning or signing the attestation on his application. Similarly, he has no recollection of seeing or reading the warning on the Notice to Appear although he remembered receiving it. He does not recall reviewing his application with Ms. Campbell, but he acknowledged that she probably went through it with him. He did not think that he asked for help when taking his citizenship test; he remembers that he went alone to write it. Mr. Wysocki stated that after he was charged on May 3, 1995, everything went downhill. His wife was, understandably, very upset. He thought of his family and nothing else. He was extremely emotional, crying almost daily, and couldn't talk to anyone. He tried to keep up with and pay the bills. He and his wife tried to solve their problems without external assistance. This was very hard emotionally and his concentration was gone. His focus was on his family and not on his application for citizenship. In his mind, he never intended to hide his criminal charge. His wife left him because of the notice regarding revocation of citizenship. The notice was, so to speak, the straw that broke the camel's back.
THE LAW
[15] A reference to the court under the Citizenship Act is a finding of fact that forms the basis of a report by the Minister and eventually a decision by the Governor in Council: Canada (Secretary of State) v. Luitjens (1992). 142 N.R. 173 (F.C.A.) A reference case is a civil proceeding: Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R. 267 (T.D.). The standard of proof is the civil standard based on a balance of probabilities, but the evidence is scrutinized with greater care because of the serious allegations to be established by the proof that is offered: Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.); Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37 (T.D.); Canada (Minister of Citizenship and Immigration) v. Schneeberger 2003 FC 970, [2003] F.C.J. No. 1252.
[16] The phrase "knowingly concealing material circumstances" in sections 10 and 18 [of the Citizenship Act] requires that the court find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he know or did not know that they were material, with the intent of misleading the decision-maker: Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1 (T.D.). A technical transgression of the Act will not suffice because innocent misrepresentations are not to result in the revocation of citizenship: Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155 (T.D.). A misrepresentation of a material fact includes an untruth, the withholding of truthful information, or a misleading answer that has the effect of foreclosing or averting further inquiries: Odynsky, supra.
ANALYSIS
[17] In light of all of the evidence, I accept that Mr. Wysocki cannot recall having seen the warnings referred to earlier on either his application for citizenship or his notice to appear. That, however, does not end the matter.
[18] I find that Ms. Campbell did review the warning on the application with him and that he understood it at the time. Although his English was deficient, he attended the citizenship test on his own, requested no assistance and received a test score of seventeen out of twenty. Mr. Wysocki remembers that his wife asked a lawyer, retained to deal with the criminal charge, whether the charge would create problems with citizenship. He also testified, on cross-examination, that whenever he didn't understand something (due to language), it was his practice to ask for assistance.
[19] Although Mr. Wysocki does not recall having seen the warning on the notice to appear, he did attend on the noted day, at the noted time and place to take the oath of citizenship. I find Mr. Wysocki's credibility was undermined when he stated that his wife left him because he received the Minister's notice regarding revocation of citizenship. The notice was served on him on December 18, 2000; he requested a reference to the court on January 9, 2001; his wife left him in August, 2002.
[20] Even if I were to accept, without reservation, that Mr. Wysocki neither read nor understood the warning and attestation on his application for citizenship (and I do not do so), I would nonetheless infer, from the totality of the evidence and on a balance of probabilities, that Mr. Wysocki, notwithstanding his personal circumstances, was aware of his obligation to disclose to citizenship officials that he had been charged with a criminal offence between the date of his application and the date when he took the oath of citizenship. Mr. Wysocki specifically acknowledged receipt of the notice to appear. He appeared to take his oath on the day and at the time and place designated in the notice. I infer, on a balance of probabilities, that he reviewed the notice, selectively chose to take note of and remember specific paragraphs and to ignore other paragraphs. The ignored paragraphs were those that would negatively affect his ability to proceed with taking the oath. I conclude that in choosing to ignore the warning paragraph of the notice, he wilfully omitted to disclose that which he ought to have disclosed and that which he knew he ought to have disclosed. In my view, wilful omission constitutes "knowingly concealing" within the meaning of sections 10 and 18 of the Citizenship Act. That the information was material is beyond doubt.
DECISION
[21] Mr. Wysocki obtained his Canadian citizenship by knowingly concealing material circumstances in that he failed to divulge that he was charged with an indictable offence between the time he applied for citizenship and the time he took the oath of citizenship.
COSTS
[22] Both the Minister and Mr. Wysocki seek costs on a solicitor-and-client basis. Costs on a solicitor-and-client basis are the exception and are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Apotex Inc. v. Canada (Minister of National Health and Welfare) (2000), 265 N.R. 90 (F.C.A.); Amway Corp. v. Canada, [1986] 2 CTC 339 (F.C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. Neither party has satisfied me that the other has engaged in misconduct such that an award of costs on a solicitor-and-client basis is justified. Costs will be as the parties may agree. Failing agreement, if necessary, counsel may speak to the matter of costs.
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Judge
Ottawa, Ontario
October 9, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1379-01
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. KRZYSZTOF WYSOCKI
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 6, 2003
REASONS FOR ORDER BY: MADAM JUSTICE LAYDEN-STEVENSON
DATED: OCTOBER 9, 2003
APPEARANCES:
SOLICITORS OF RECORD:
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MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
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FOR THE PLAINTIFF
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PFEIFFER & ASSOCIATES
OTTAWA, ONTARIO
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FOR THE DEFENDANT
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