Canada (Minister of Citizenship and Immigration) v. Singh, 2002 FCT 861

Date: 20020814

Docket: T-2755-95

Neutral citation: 2002 FCT 861

IN THE MATTER OF revocation of citizenship pursuant

to section 10 of the Citizenship Act, S.C. 1974-75-76, Chapter

108;

AND IN THE MATTER OF a request for reference to the

Federal Court pursuant to section 17 of the Citizenship Act;

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

                                                                                                                                                       Applicant

                                                                                 and

                                                                 MALKIAT SINGH

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons relate to two motions filed on behalf of the applicant on this reference relating to revocation of the respondent's citizenship arising out of the applicant's satisfaction that the respondent "...obtained, retained, renounced or resumed citizenship under [the Citizenship Act] by false representation or fraud or by knowingly concealing material circumstances".^[1] The reference, pursuant to what is now subsection 18(1) of the Citizenship Act, was filed with the Court the 28^th of December, 1995.

[2]                 By the two motions, the applicant seeks:

            -           first, to amend an order of Mr. Justice McKeown dated the 15^th of December, 1998 wherein my colleague ordered that the Administrator of this Court prepare and issue a Commission naming me as Commissioner to take evidence in India from twenty-one (21) named witnesses, by deleting from the list of named witnesses, three (3) names, and substituting therefore three (3) other names; and

            -           secondly, pursuant to Federal Court Rule 273, that the evidence taken on Commission in Ludhiana, India in March, 2002 be introduced into the record on the reference.

[3]                 The first motion was filed to be dealt with pursuant to Federal Court Rule 369, that is, without appearance of counsel. By direction dated the 8^th of July, 2002, pursuant to Rule 369(4), I indicated that the motion would be dealt with at the hearing of the second motion which was scheduled at the premises of the Court in Winnipeg for the 29^th of July, 2002.

[4]                 The evidence of thirteen (13) witnesses was heard at Ludhiana, in the State of Punjab, India, on the 11^th, 12^th, 13^th and 14^th of March, 2002. The taking of the evidence of ten (10) of those witnesses, together with related exhibits other than exhibits A2 and A7, into the record of the reference proceeding was not contested. In the result, I indicated during the hearing of the motions that an order would go, on consent, introducing the evidence of those ten (10) witnesses and related exhibits, other than exhibits A2 and A7, into the record of the reference proceeding. Introduction into the record of the evidence of the remaining three (3) witnesses heard at Ludhiana was contested and the balance of these reasons focusses on the dispute with respect to the introduction into the record of the testimony and related exhibits of those remaining three (3) witnesses.

BACKGROUND

[5]                 As earlier indicated, this reference proceeding was commenced by Notice Of Reference filed with the Court the 28^th of December, 1995. For various reasons, not of particular relevance to the motions before me, but including the death of the first counsel for the respondent, the reference proceeding did not proceed to the point of instituting a process for the taking of evidence in India or elsewhere for almost three (3) years. On the 15^th of December, 1998, my colleague, Mr. Justice McKeown, ordered that the Administrator of this Court prepare and issue a Commission naming me as Commissioner to take the evidence, in Chandigarh, India, or at such other place or places to be specified by the Commissioner for that purpose, of twenty-one (21) witnesses. All of the witnesses were identified by name. All but four (4) of the witnesses were also identified by the titles of the official positions that they occupied.

[6]                 The same day, a Commission issued to me, identifying the witnesses whose evidence I was commissioned to take, by cross-reference to the Order of Mr. Justice McKeown.

[7]                 Again on the same day, a "Letter Of Request" issued out of the Court, addressed to the "Judicial Authorities India", to the attention of Mr. K.K. Garg, Registrar of the High Court of Punjab and Haryana, Chandigarh, India, noting the proceeding pending in this Court, noting that it had been shown to this Court that it appeared necessary for the purpose of justice that witnesses residing in the jurisdiction of the High Court of Punjab and Haryana be examined within that jurisdiction, identifying the witnesses, once again by name and, except in four (4) cases, by title, and requesting that, "...in furtherance of justice, [the appropriate justice officials] cause the ... named witnesses to appear before the Commissioner by the means ordinarily used in [that Court's] jurisdiction, if necessary to secure attendance, and to answer questions under oath or affirmation or otherwise according to the religious beliefs of the said witnesses, and to bring and produce at the said examination all documents and things relevant to the matters in question...".

[8]                 The Judicial Authorities to which the request was directed were further requested to permit me to conduct the examination of the witnesses in accordance with the law and evidence and procedure of Canada, the Federal Court Rules, 1998, and the Commission issued by this Court.

[9]                 The Letter Of Request was apparently referred to the Government of India. Such a request was apparently not familiar to officials of the Government of India. In the result, it was not until mid-October, 2001 that the request was "acceded to", the Canadian High Commission at New Delhi was informed of the accession, and appropriate judicial officials in India were authorized "...to provide the necessary assistance to the Commission appointed by the Federal Court of Canada for securing the attendance of witnesses as named in the Letter of Request." [emphasis added].

[10]            In a teleconference among myself and counsel for the applicant and the respondent held on the 15^th of November, 2001, the period from the 10^th to the 29^th of March, 2002 was identified for the conduct of the Commission in India. A date for consideration of any preliminary motions was fixed for the 4^th of January, 2002. No preliminary motions were filed.

[11]            In mid-February, 2002, the Court provided written direction to counsel regarding confirmation by the 22^nd of February, 2002 of scheduling of witnesses, including the issuance of appropriate subpoenas, referred to by Court officials in India as "summonses", compliance with notice requirements to witnesses, and acceptability of proposed interpreters.

[12]            Once again in mid-February, not surprisingly, the Canadian High Commission in New Delhi advised counsel for the applicant that certain of the officials named as witnesses in the Commission and identified as well by the positions that they held, no longer occupied the identified positions. Their successors in office were identified. Since the only evidence to be adduced through those officials was confirmation of certified copies of certain original records maintained by them, counsel for the applicant notified the Court and counsel for the respondent that it would be necessary to substitute for the named witnesses the current office holders. While concern was expressed by the Court that the permission granted by the Government of India for the conduct of the Commission was directed solely to the witnesses named in the Commission, no motion was brought to amend the Commission and the Letter Of Request that led to the accession. Indeed, it was recognized that any request for amendment of the accession could likely not be accommodated without a significant delay in the timing of the scheduled trip to India.

[13]            In the event, the Commission proceeded as scheduled at Ludhiana, State of Punjab, India.

[14]            At the opening of the sittings of the Commission, the transcript of proceedings records the following comments by the Court:

As we have also discussed during teleconferences, and in fact earlier this morning, it is the Court's intention to hear from your witnesses whoever they may be, notwithstanding that their names may not be on the list that was specifically approved by the Government of India, and to reserve for consideration when we resume in Canada at a later date how we will treat that evidence and any other evidence with which any concern is expressed during the course of our sitting here.^[2]

[15]            At page 12 of the same volume of the transcript the following exchange is recorded between counsel for the respondent and the Court:

. . .

Lastly, I understand that your lordship has confirmed that objections, if we can call it that, will not be argued here in India but will be reserved for argument in Canada. To that extent, either notice here will be given [of] the objection or notice in writing at some point to Mr. Gosman [counsel for the applicant] before we commence. In fact, I brought to him one matter which I do intend to raise in Canada once we resume, given that this was the first opportunity to appear before what would be best described as the trial court.

. . .

THE COURT: Thank you, Mr. Minuk [counsel for the respondent]. I do invite you wherever possible, to the extent you have objections - - and hopefully there will not be too many - - to raise them here in court so that they will be on the record and so that the Court as well as yourself and Mr. Gosman will be aware of what any objections may be and [we] will be in a better position then each to prepare ourselves in our own way for resumption of the hearing in Canada.^[3]

[16]            In the course of the Commission proceedings, three (3) witnesses were called on behalf of the applicant, each unnamed in the Order of Mr. Justice McKeown and related Letter Of Request, but each occupying an office identified in the Order and related Letter Of Request and each identifying himself as a successor in office to a named witness. Objections were recorded generally or in each case. In relation to one (1) of the three (3) witnesses, Mr. Darshan Singh, an additional objection was recorded on behalf of the respondent relating to two (2) exhibits introduced through him, neither of which had previously been disclosed to counsel for the respondent nor had either been seen by him prior to cross-examination.^[4]

[17]            Thus, the stage was set for the motions addressed in these reasons.

THE ISSUES

[18]            While the issues arising out of the motions before the Court were not clearly defined in the written materials provided to the Court, I am satisfied that they can briefly be described as the following:

            1)         does the Court, as now constituted, have the authority to amend the Order of Mr. Justice McKeown dated the 15^th of December, 1998 by substituting the names of current [as at March 11 to 14, 2002] office holders for the names of others who were the holders of the same or equivalent offices at the date of the Order and Letter Of Request?

            2)         if so, what would the impact of such an amending Order be?

            3)         what outcome is dictated by an appropriate balance among the interests of justice at stake on these motions, those being, in the opinion of the Court, first, in ensuring access to Canadian citizenship is not abused; second, in ensuring that this Court respects extraordinary permission granted to it by a foreign state; and, third, in providing fair process to persons such as the respondent in this matter in the conduct of the reference? The consideration of fair process involves the potential utilization of the testimony and related exhibits of witnesses not identified by name, albeit by office, to the respondent before the sitting of the Commission and potential reliance on exhibits not disclosed to counsel for the respondent, before the conduct of his cross-examination of the witnesses through whom the exhibits were introduced.

ANALYSIS

            1)         The Court's Amending Authority

[19]            In a teleconference with counsel prior to the hearing of the motions at issue, the Court expressed its concern that the Order of Mr. Justice McKeown dated the 15^th of December, 1998 and the resultant Letter Of Request might be spent and that this Court might therefore be functus in relation to the Order and the Letter Of Request.

[20]            Having heard counsel on this issue and having considered all of the material before the Court and the circumstances in which these motions were brought and heard, I am satisfied that the Order of Mr. Justice McKeown, and the related Letter Of Request, are not spent. Of the twenty-one (21) witnesses identified in the Order and related Letter Of Request, the evidence of only thirteen (13), three (3) of them substituted, was heard in Ludhiana. Thus, at least in theory, either counsel could request resumption of the Commission to hear the evidence of one or more of the remaining eight (8) witnesses. While I am satisfied that such an eventuality is unlikely and acceding to such a request might be difficult to contemplate, given the associated costs, it nonetheless remains a technical possibility. Further, unless and until the testimony and related exhibits received on Commission are taken into the reference proceeding record, it once again, at least theoretically, remains open to counsel to request return to India to further examine or cross-examine one or more of the witnesses whose testimony was taken.

[21]            I am satisfied that, if testimony had been heard from all of the witnesses named in the Order of Mr. Justice McKeown and the Letter Of Request and such testimony and related exhibits had been taken into the record of the reference proceeding, then Mr. Justice McKeown's Order and the related Letter Of Request would be spent. But that is not the case.

[22]            In the result, I am satisfied that the Order of Mr. Justice McKeown and the Letter Of Request remain operative and capable of amendment. The Court, as presently constituted, is not functus.

2)         The Impact of An Amending Order

[23]                    While I am satisfied that the Court, as presently constituted, has the authority to amend the Order of Mr. Justice McKeown and the related Letter Of Request, I am not satisfied that, without amendment of the accession granted by the Government of India to extend the scope of the accession to the scope of any amendment of the Order and Letter Of Request, the amendment by the Court would be meaningless. This Court should be loathe to undertake meaningless process. Put another way, whether such process of the Court would be meaningless would be entirely dependant upon the response of the Government of India.

[24]            This Court has already, in this matter, undertaken what might be considered to be meaningless process. In hearing at Ludhiana the testimony of three (3) witnesses, technically at least, and I am satisfied more than technically, not covered by the accession granted by the Government of India, the Court essentially engaged in "meaningless process" on the speculation that, on return to Canada, such process might become, or be made to be, meaningful.

[25]            Counsel for the applicant urged that it was made meaningful by the fact that the High Court of Punjab and Haryana issued summonses, we would call them subpoenas, to the three (3) substituted witnesses in full knowledge of the terms of the Letter Of Request addressed to it and eventually acted on by the Government of India.

[26]            With great respect, I am not satisfied that the High Court of Punjab and Haryana had the authority to vary the scope of the accession granted by the Government of India and thus the scope of the authority conferred on it. But that Court's actions are certainly evidence of a recognition by it that the substitution of names of witnesses is more one of form than of substance.

[27]            As earlier indicated in these reasons, the evidence provided by the substitute witnesses related to their functions as office holders in the offices previously held by witnesses named in the Order of Mr. Justice McKeown and the related Letter Of Request. There is no reason whatsoever to suspect that, as record keepers merely testifying as to the records kept by them and the conformity of certain certified copies potentially for use in the Canadian Court proceedings with original records brought by them to the Court, their testimony would have been any different from the testimony that, but for change of circumstances, might have been provided by the original named witnesses. In the circumstances then, it might not be unreasonable to expect that the hearing of the testimony of the substituted witnesses by the Court, albeit at least technically outside of this Court's authority granted by the accession of the Government of India, was nothing more than a reasonable process having regard to the economics of travelling from Canada to India to take Commission evidence; a process that might reasonably be expected to be approved by the Government of India if a variation of its accession, granted after the fact, were to be requested by this Court.

[28]            Against the foregoing brief analysis, I am not prepared to conclude that it is likelier than not that an amendment of the Order of Mr. Justice McKeown and the related Letter Of Request would be meaningless and therefore not justified.

            3)         The Interests of Justice at Stake

[29]                Canadian citizenship is a privilege and not a right, and is a privilege that is not lightly conferred. The Government of Canada and the people of Canada have a vested interest in ensuring that access to that privilege is not abused. Thus, the Citizenship Act contains provisions for revocation of Canadian citizenship where the privilege of access has been abused by resort to false representation or fraud or knowing concealment of material circumstances. This reference proceeding is an example of part of the revocation process. I am satisfied that it is therefore important in the interests of justice that a reference proceeding such as this have before it a record consisting of the totality of the best evidence available. Ensuring that the testimony and related exhibits provided by the substitute witnesses are taken into the record would work toward achievement of this particular interest.

[30]            At the same time, it is trite to say that Canada and this Court have a vested interest in ensuring that permission to take Commission evidence on foreign soil is respected and not abused. To abuse such permission would risk putting in jeopardy future requests of a nature equivalent to that here at issue. This particular consideration would augur in favour of not receiving into evidence the testimony and related exhibits of substituted witnesses unless it can first be ensured that the accession granted by the Government of India is varied by that Government to put beyond doubt its concurrence to the reception of that evidence.

[31]            Finally, it surely is beyond question that a respondent such as the respondent in this proceeding, who has been in Canada for many years, who has been a Canadian citizen for a number of years and who, I understand, has put down significant roots in Canada, is not deprived of citizenship through a process that could be seen to be other than fair.

[32]            On the facts of this matter, counsel for the respondent urges that to receive into evidence the testimony and related exhibits of the substituted witnesses would indeed amount to a process that could not only be seen to be, but indeed is, less than fair. He cites two (2) bases for this submission. First, he urges that the respondent was entitled to rely on the scope of the Order of Mr. Justice McKeown and the resultant request and accession. He urges that, if the evidence of the substitute witnesses is taken into the record of the reference proceeding here in Canada, at least without "regularization" of the process, his client will be substantially deprived of fair process notwithstanding that, if Mr. Justice McKeown's Order and the related Letter Of Request had been appropriately amended before the taking of evidence in India, and that amendment had been acceded to by the Government of India, the concern would undoubtedly have been removed.

[33]            Secondly, counsel for the respondent urges that the reception into evidence of two (2) exhibits tendered through one of the substituted witnesses works an unfairness notwithstanding that those exhibits are apparently identical in substance to two (2) exhibits that would have come in through the office holder named in Mr. Justice McKeown's Order and the related Letter Of Request and that did in fact come in, albeit perhaps with less authority, through the substituted witnesses.

[34]            On balance, I am satisfied that the interests of justice favour reception of the evidence of the substituted witnesses into the record in the reference proceeding, if, and only if, the taking of the evidence of the substituted witnesses in India, in March of this year, is formally acceded to, after the fact, by the Government of India. In reaching this conclusion, I am satisfied that it should extend to the exhibits introduced through the third of the substituted witnesses, notwithstanding the fact that such exhibits were not previously disclosed to counsel for the respondent and were not even available to counsel, in any real sense, for purposes of cross-examination. Substantively, I am satisfied that no significant breach of fairness resulted from the lack of prior disclosure of those exhibits.

CONCLUSION

[35]                        In the result, an Order will go:

                         - first, bringing into evidence the testimony and related exhibits, other than exhibits A2 and A7, of the ten (10) witnesses in relation to whose evidence, no objection is taken on behalf of the respondent, and indeed, where consent to introduction of such evidence and exhibits has been provided on behalf of the respondent;

                         - secondly, amending the Order of Mr. Justice McKeown dated the 15^th of December, 1998 to substitute therein the names of the witnesses whose evidence was actually taken on Commission and who were not, at the time their evidence was taken, named in Mr. Justice McKeown's Order, and instructing preparation and issuance of a further Letter Of Request in relation to the substituted names, in each case with the substitution being made in relation to the title of the office held by the witnesses whose testimony was actually taken, when their testimony was taken, and held by named witnesses when the Order of Mr. Justice McKeown and the Letter Of Request issued; and

                         - thirdly, accepting into evidence in the revocation proceedings the testimony and all related exhibits of the substituted witnesses if, and only if, within one year from the date of the Order, the Government of India has acceded to the amendment of its accession to conform to the supplementary Letter Of Request.

[36]            An amendment of the Order of Mr. Justice McKeown would consequentially amend the Commission under which I acted.

[37]            I have hesitated in what might appear to be arbitrarily imposing a time restriction for action by the Government of India. I am conscious that that is no part of the mandate of this Court. At the same time, I am conscious that this proceeding has now been ongoing for almost seven (7) years. The term of that uncertainty has undoubtedly placed significant stresses on the respondent and his family and I am sympathetic to that impact. Thus, the arbitrary time limit imposed is not directed towards the Government of India, but rather towards ensuring, at least to the extent that I am capable of doing so, fair process to the respondent. I will remain open to an extension of the time for amendment of the accession from the Government of India on appropriate evidence that the Government of Canada has done everything that it can reasonably do to facilitate a decision from the Government of India. If I am satisfied that the delay of one (1) year is an unreasonably short delay for reasons that in no way fall at the feet at the Government of Canada, I will be sympathetic to a motion to amend my Order to extend the time.

_________________________________

       J. F.C.C.

Ottawa, Ontario

August 14, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-2755-95

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND

IMMIGRATION v. MALKIAT SINGH

PLACE OF HEARING:                                   WINNIPEG, MANITOBA

DATE OF HEARING:                                     JULY 29, 2002

REASONS FOR ORDER OF: THE HONOURABLE MR. JUSTICE GIBSON

DATED:                      AUGUST 14, 2002

APPEARANCES:

ROBERT GOSMAN                                           FOR APPLICANT

MARTIN MINUK                                              FOR RESPONDENT

SOLICITORS OF RECORD:

MORRIS ROSENBERG                                                 FOR APPLICANT

DEPUTY ATTORNEY GENERAL OF CANADA

PITBLADO BUCHWALD ASPER                   FOR RESPONDENT

WINNIPEG, MANITOBA