Conille v. Canada (Minister of Citizenship and Immigration), 2001 FCT 932

Date: 20010822

Docket: T-1063-98

Neutral citation: 2001 FCT 932

Between:

                                               JEAN ÉDOUARD CONILLE

                                                                                                                                Applicant

                                                                   - and -

                          MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                            Respondent

                                                  REASONS FOR ORDER

LEMIEUX J.

Introduction

[1]                On January 18, 2000, the applicant, Jean Conille, a citizen of Haiti and permanent resident of Canada since 1973, filed a motion under subsection 467(2) of the Federal Court Rules, 1998 (the Rules) seeking an order summoning the respondent to answer to a charge of contempt of court in relation to a mandamus issued by Madam Justice Tremblay-Lamer on October 30, 1998. By amended motion dated February 19, 2001, the applicant specified that the order he sought was against six employees of the Government of Canada.

[2]                On March 9, 2001, Mr. Justice Blais ordered that Roger Payette, then an analyst in the Case Management Section of the Department of Citizenship and Immigration (the CIC), and Pascale-Catherine Guay, a lawyer with the Department of Justice of Canada (Justice Canada), appear before the Court on Monday, April 2, 2001 (subsequently set down for hearing on April 23, 2001) and be prepared to hear proof of the act with which they are charged and to present any defence that they may have.

[3]                At the commencement of the hearing on April 23, 2001, counsel for the respondent made an oral motion seeking to have the proceedings stayed on the ground that the applicant had failed to disclose certain information that was required of him.

Issues

[4]                The issues raised in this case are: first, whether the requirements stated by the Supreme Court of Canada in respect of disclosure by the Crown apply to contempt of Court proceedings under the Rules, and second, whether a stay of proceedings is an appropriate remedy under section 24 of the Charter of Rights and Freedoms (the Charter). In the alternative, the applicant is seeking the leave of the Court, under rule 41, for subpoenas to be issued to compel six persons involved in Mr. Conille's case to appear.

Facts

[5]                The applicant has been trying to obtain Canadian citizenship since 1991. His first application was refused because he did not have the necessary three years of residence. In 1988, he had pleaded guilty to the indictable offence of "causing death by criminal negligence". He was given a suspended sentence and three years' probation, which interrupted his period of residence.

[6]                Mr. Conille filed a fresh application for citizenship on August 2, 1995. He had received no reply by 1998 and decided to file an application for mandamus. On June 22, 1998, Mr. Payette filed an affidavit on behalf of the respondent opposing the application, in which he stated:

1.         that on December 7, 1995, he had sent a letter to the Deputy Director General of the Canadian Security Intelligence Service (CSIS) informing him that the application for citizenship filed by the applicant on August 2, 1995, would not be determined until CSIS gave its authorization;

2.         that he had been informed by representatives of CSIS that the applicant's case was still being examined and that to that date, June 22, 1998, CSIS had never given its authorization in respect of that application;

3.         that the applicant's application for citizenship could not be further examined as long as CSIS had not given its authorization in that respect.

[7]                Mr. Payette was cross-examined on his affidavit on July 24, 1998. Pascale-Catherine Guay represented the respondent at the cross-examination. The respondent's record was filed on September 2, 1998. In it, the respondent reminded the Court that an inquiry to CSIS to determine that the person applying for citizenship is not a person who could be denied citizenship by the Governor in Council pursuant to section 20 of the Citizenship Act is a requirement of the Act. The respondent, relying on Mr. Payette's affidavit, says that the examination of the applicant's case could not proceed as long as CSIS had not provided that investigation report to the respondent, and that consequently the applicant had not demonstrated that mandamus should issue to him.

[8]                On October 30, 1998, Tremblay-Lamer J. allowed the application for judicial review made by Mr. Conille. She ordered the following:

The Registrar shall inform CSIS that unless justification for continuing the investigation is provided as soon as the Registrar shall consider appropriate, the investigation will be considered to be closed.

If there are serious reasons to justify continuing the investigation, the Registrar shall then inform the applicant that the investigation is continuing and that processing of his application is suspended until the investigation is completed..

If there are no serious reasons or a reply is not received, the Registrar shall, on the assumption that the investigation is closed, forward the application to a citizenship judge for the citizenship judge to consider the application and decide it on the merits.

[9]    In support of his motion before Mr. Justice Blais, the applicant argued that Mr. Payette had knowingly misled Tremblay-Lamer J., because on July 14, 1998, at least, he had written to Diane Desrosiers by electronic mail that he had received a clearance from CSIS.

[10]                        In summoning Mr. Payette to answer to a charge of contempt of court in his decision dated March 9, 2001, F.C.A. 331, Blais J. wrote, at paragraphs 36 and 37:

[TRANSLATION] It seems to me that the conduct of Roger Payette and specifically the manner in which he avoided directly answering the questions put to him on July 24, 1998, may be regarded prima facie as a manner of interfering with the proper administration of justice.

I conclude that the interests of justice would be well served by summoning Roger Payette to appear before the Court on Monday, April 2, 2001, at 9:30 a.m., at 30 McGill St., Montréal, Quebec, and to be prepared to hear the proof of the act with which he is charged, to wit that he deliberately concealed information from the Court by failing to answer correctly the questions at the examination on the affidavit held on July 24, 1998, and by failing to make the necessary arrangements to ensure that the information contained in an affidavit signed on June 22, 1998, was amended and made consistent with the facts before being submitted to the Court, which constitutes a manner of interfering with the proper administration of justice. Roger Payette should also be prepared to present any defence that he may have, in accordance with the provisions of rules 466 and 467 of the Federal Court Rules, 1998. [Emphasis added]

[11]                        In summoning Pascale-Catherine Guay, Blais J. wrote the following, at paragraph 50:

The Court therefore enjoins Pascale-Catherine Guay to appear in the Federal Court of Canada ... . At that time, Pascale-Catherine Guay should be prepared to hear the proof of the act with which she is charged, to wit failing to make the necessary arrangements to ensure that all the relevant facts, to her knowledge, were brought to the attention of Madam Justice Tremblay-Lamer before the hearing on October 15, 1998, which constitutes a manner of interfering with the proper administration of justice. Pascale-Catherine Guay should also be prepared at that time to present any defence that she may have, in accordance with the provisions of rules 466 and 467 of the Federal Court Rules, 1998. [Emphasis added]

[12]                        On April 10, 2001, Bruno Pateras, representing the Minister, wrote the following letter to Jean-Ernest Pierre, acting for Mr. Conille:

[TRANSLATION] Because our clients have been ordered to appear on April 23, 2001, we are hereby formally requesting that you provide us, in accordance with your duty of disclosure as provided in the Canadian Charter of Rights and Freedoms, with the following information:

-              the names of the witnesses you will be calling before the Court;

-               a copy of any prior declaration, examination, or testimony or, failing that, a "will-say statement" of their testimony;

-               a copy of any documents in your possession that are relevant to this case.

You will understand that it is essential that we obtain this information as soon as possible in order to prepare. We would therefore ask that you forward it to us by April 17, 2001.

[13]                        On April 18, 2001, Mr. Pierre wrote the following to Mr. Pateras:

[TRANSLATION] As requested, we are sending you a list of the witnesses that I intend to calla t the hearing of the above-mentioned case on April 23, 2001. They are: Pierre Briand, Diane Elmquist, Mary Eng, Diane Desrosiers, Rosemarie Redden, Jacqueline Gautreau and Jean-Edouard Conille.

Including the respondent's record filed by Pascale-Catherine Guay, all the documentary evidence that is relevant to the case is already in your possession.

Legislation

[14]                        Rules 466 to 470 establish a code that governs contempt of court; those rules read as follows:

Analysis

(a) Duty to disclose

[15]                        I do not intend to dwell on the duty to disclose in contempt of court cases, as provided by the Rules; that process is triggered by an order which is obtained ex parte on motion by a party with an interest in the matter, enjoining the person concerned to appear before a judge and be prepared to hear the proof of the act with which the person is charged, a sufficiently detailed description of which is given to enable the person to know the nature of the charges against him or her, and also to be prepared to present any defence that the person may have.

[16]            Bhatnager v. Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217 at page 224 establishes the following principles in respect of contempt of Court, under the Rules:

(1) an allegation of contempt of court is criminal (or at least quasi-criminal) in character;

(2) it is necessary that the constituent elements of contempt be proved by the party alleging contempt beyond a reasonable doubt;

(3) the party alleging contempt must prove actual knowledge on the part of the alleged contemnor;

(4) given the premise that liability in contempt is essentially criminal liability, vicarious liability has no application to contempt proceedings as such liability is unknown to criminal law.

[17]            In R. v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court of Canada held, in the context of criminal offences governed by the Criminal Code, that the Crown is required to disclose all relevant information to the defence, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If notes do not exist then a "will say" statement, summarizing the anticipated evidence of the witness, should be produced based on the information in the Crown's possession: see page 344.

[18]            The Supreme Court of Canada recognizes that the general principles stated in the reasons for judgment in Stinchcombe have been formulated in the context of criminal acts. Mr. Justice Sopinka, writing for the Court, at page 342, went on to analyse the situation as it relates to other offences:

... While it may be argued that the duty of disclosure extends to all offences, many of the factors which I have canvassed may not apply at all or may apply with less impact in summary conviction offences. Moreover, the content of the right to make full answer and defence entrenched in s. 7 of the Charter may be of a more limited nature. ... Pending a decision on that issue, the voluntary disclosure which has been taking place through the co-operation of Crown counsel will no doubt continue.

[19]            As a general principle, I recognize that in contempt of court cases, which are essentially criminal in nature, an applicant who has obtained an order from the Court under subsection 467(1) of the Rules enjoining a person to appear before the Court to hear the proof of the act with which he or she is charged and to be prepared to defend himself or herself has an obligation to communicate his or her evidence to the defence, as Mr. Pateras argues. However, as the Supreme Court of Canada appreciated in Stinchcombe, supra, the nature and extent of that disclosure may be worked out only in the context of concrete situations, and in accordance with the scheme provided by the Rules.

[20]            Two examples will suffice:

1. In this case, the nature and extent of the applicant's duty to disclose his evidence, at common law, is circumscribed by (1) the evidence disclosed in the motion he filed seeking an order to appear, and (2) the definition of the act with which the person is charged given by the judge hearing the motion to summon the person with a detailed description, and the applicant's duty, unless otherwise ordered by the Court under subsection 467(4), to serve the supporting documents with the order to appear. In a particular case, the Rules of the Court in respect of disclosure will largely, it seems, meet the requirements set out in Stinchcombe, supra.

2. A particular problem may arise with witnesses. In this case, the applicant must undoubtedly (unless it is admitted by the respondent) prove the documents on which he is relying to obtain a finding of contempt of court. The applicant (and this is apparently the case here) has no statement from the authors of those documents and must request a subpoena to compel them to testify to make that proof. It might not be possible for him to provide "will-say" statements.

[21]            It will be up to the judge on the merits to decide, in a precise context, whether the disclosure requirements in the case have been observed. I encourage the applicant to respond more completely, by voluntary disclosure, than he has done to the request for disclosure made by Mr. Pateras on April 10, 2001.

(b) Stay of proceedings

[22]            In R. v. Dixon, [1998] 1 S.C.R. 244 at page 264, the Supreme Court of Canada stated that once an accused establishes impairment of the right to make full answer and defence as a result of the Crown's failure to disclose, he or she is entitled to a remedy under subsection 24(1) of the Charter. In that case, Mr. Justice Cory characterized a stay of proceedings as an "extraordinary remedy". At page 262 of Dixon, supra, Cory J., writing for the Court, said:

The right to disclosure is but one component of the right to make full answer and defence. Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a result of that violation. Indeed, different principles and standards apply in determining whether disclosure should be made before conviction and in determining the effect of a failure to disclose after conviction. For instance, where the undisclosed material is available for review at trial, the presiding judge will evaluate it in relation to the Stinchcombe threshold to determine whether the Crown breached its obligation to disclose by withholding the material. If it has, an order for production or perhaps an adjournment will be the appropriate remedy. [Emphasis added]

[23]            In my opinion, the motion for a stay of proceedings must be denied, for the following reasons.

[24]            First, the motion for a stay of proceedings was made orally, with no prior notice to the Court. This manner of proceeding does not permit the Court to identify the nature and scope of the problem and, more precisely, to know what evidence the applicant has failed to provide to the respondent or whether such evidence exists, and if it exists, whether failure to disclose it has impaired the right of the persons summoned to make full answer and defence. The applicant contends that all the evidence is in the record.

[25]            Second, I do not accept the respondent's argument that all of the requirements in Stinchcombe, supra, apply in their entirety in this case, without mitigation. In fact, Stinchcombe recognizes that distinctions must be made.

[26]            Third, the respondent has not met the requirements laid down by the Supreme Court in Dixon, supra. The respondent has not established the gravity of the impairment of Mr. Payette's and Ms. Guay's rights or the prejudice caused to them.

[27]            Fourth, the request for disclosure was made at the last minute, and counsel's taciturn response attests to this.

[28]            Fifth, the act with which Mr. Payette and Ms. Guay is charged is a matter of public order, and this is a factor that weighs against a stay of proceedings: see Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at page 434.

(c) Leave of the Court for subpoenas

[29]            According to the Registry, the applicant made a last-minute request on Thursday, April 19, 2001, for the administrator to issue subpoenas to compel the attendance of the persons identified in his letter to Mr. Pateras dated April 18, 2001.

[30]            The Registry informed the Court of this request, and the Court gave an oral instruction that the request for subpoenas would be discussed on Monday, April 23, 2001.

[31]            I believe that it is in the interests of justice that leave be given for the subpoenas requested by the applicant in order that evidence of the documents on which the applicant is relying may be presented.

Disposition

[32]            The motion for a stay of proceedings is dismissed with costs. The applicant's request for subpoenas to issue is granted. The subpoenas will be issued by the administrator, on request by the applicant, after the judicial administrator has set a new hearing date as directed in the order made by Blais J. on March 9, 2001. The respondent shall facilitate service of the subpoenas on the persons under the respondent's control.

                                                                              J. François Lemieux

                                                                                                   Judge

O T T A W A, Ontario

August 22, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                  T-1063-98

STYLE OF CAUSE:                 JEAN ÉDOUARD CONILLE v. MINISTER OF

                                                CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:            Montréal, Quebec

DATE OF HEARING: April 23, 2001

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:                                    August 22, 2001

APPEARANCES:

Jean Ernest Pierre

Hugues Langlais                                                 FOR THE APPLICANT

Bruno Pateras

Danielle Barot                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jean Ernest Pierre

Montréal, Quebec

Hugues Langlais

Montréal, Quebec                                             FOR THE APPLICANT

Pateras & Iezzoni

Montréal, Quebec                                             FOR THE RESPONDENT