Date: 20100624
Docket: T-827-08
Citation: 2010 FC 692
Ottawa, Ontario,
June 24, 2010
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
DEVENDRA KUMAR PAREKH
MANISHABEN DEVENDRA PAREKH
Defendants
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an action brought by the Minister of
Citizenship and Immigration for a declaration that Devendra Kumar Parekh and
Manish Aben Devendra Parekh obtained Canadian
citizenship by false representation or fraud or by knowingly concealing
material circumstances. Success in his action would entitle the Minister,
pursuant to paragraph 18(1)(b) and subsection 10(1) of the Citizenship Act,
R.S.C. 1985, c. C-29, to make a report to the Governor in Council; if that
report is accepted, the Defendants will cease to be Canadian citizens.
FACTS
[2]
The Defendants do not dispute that they lied in
order to obtain Canadian citizenship. The parties have agreed on a statement of
facts, the salient points of which are as follows.
[3]
The Defendants became permanent residents of Canada on May 11, 1997. In June 1999, they
moved to the state of Tennessee
in the United States. They then
moved to the state of Oklahoma.
[4]
Mr. Parekh came back to Canada, moving to Windsor, in August of 2000. Mrs. Parekh
followed him in December 2000.
[5]
On August 9, 2000, the Defendants applied for
Canadian citizenship. Their applications were approved on December 19, 2000,
and they became citizens on February 21, 2001.
[6]
Shortly thereafter, both were separately charged
with, inter alia, making false representations on their application for
Canadian citizenship, contrary to paragraph 29(2)(a) of the Citizenship Act.
Both pleaded guilty to that offence in November 2002, and each was fined $700.
[7]
Citizenship and Immigration Canada (CIC) became
aware of the charges and the convictions against the Defendants in May 2003. On
June 10, 2003, CIC officials recommended that the department proceed with the
revocation of their citizenship.
[8]
On June 17, 2003, Mr. Parekh submitted an
application for permanent residence on humanitarian and compassionate grounds
(the H&C application) on behalf of his daughter, with support of a
sponsorship application by the Defendants. The H&C application was
incomplete, and was returned to Mr. Parekh. He submitted a new application on
August 26 of the same year, and an updated H&C application in 2006. No
decision has yet been made on this application.
[9]
The Defendants made several applications for
Canadian passports. A number of their applications were refused, but they were
issued limited-time passports in December 2003. Mr. Parekh applied for a
Canadian passport again in September of 2009. This application was
denied. The Defendants did not seek judicial review of this or the other
refusals.
[10]
In the meantime, no developments took place in the
matter of the revocation of the Defendants’ citizenship for a year and a half,
between June 2003 and December 2004, when a memorandum recommending the
revocation of the Defendant’s citizenship was drafted. However, the then
Minister of Citizenship and Immigration quit or was removed from her position
shortly thereafter, before the memorandum was presented to her.
[11]
No further developments took place for two
years, until December 2006. During that time, there were several changes of the
Minister, each accompanied by shifts in departmental priorities. As a result,
the Plaintiff only signed the Notices in Respect of Revocation of Citizenship
of the Defendants, as required by section 18 of the Citizenship Act, on
December 14, 2006.
[12]
The Notices were served on the Defendants in
early January 2007. On January 26, 2007, the Defendants asked, as authorized by
paragraph 18(1)(b) of the Citizenship Act, that the Notices be referred
to the Federal Court.
[13]
The Plaintiff’s statement of claim instituting
the present proceedings was issued by the Court on May 27, 2008. The reason for
the delay of 17 months between the defendant’s request that the matter be
referred to the Court and the commencement of proceedings was said to be that
evidence in support of the allegations in the Notices was still being pursued.
ISSUES
[14]
The first issue in this action is whether the Defendants
obtained their Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances.
[15]
The second issue is whether the
continuance of revocation proceedings against the Defendants amounts to an
abuse of process under the principles of administrative law and, if so, whether
a stay of the proceedings is the appropriate remedy.
THE PARTIES’
POSITIONS
The Plaintiff
[16]
The Plaintiff submits that, contrary to
the information provided on their applications for citizenship, the Defendants
resided outside of Canada for a period of approximately 14 months during the
four-year period prior to the date of their applications. They pleaded guilty
in November 2002 and were convicted under section 29(2) of the Citizenship
Act of making a false representation on their application for citizenship.
On the balance of probabilities, the Defendants knowingly concealed extensive
absences from Canada.
[17]
Furthermore, the delay in this case did
not amount to abuse of process. Mere delay does not constitute abuse of
process. It must be found to be clearly unacceptable and to have caused
prejudice to the party invoking it, and must be balanced against the public
interest in the enforcement of the legislation. In the present case, the delay
is not inordinate and the Defendants have not suffered significant prejudice.
[18]
Finally, should the Court find these
proceedings constitute an abuse of process, it can deal with this
problem in its reasons and by an appropriate order as to costs. A stay is not
warranted in the circumstances of this case, and any other remedy, except
costs, would be outside of the Court’s narrow jurisdiction under subsection
18(1) of the Citizenship Act.
The Defendants
[19]
As noted above, the Defendants admit to having
lied on their applications for Canadian citizenship. They argue, nevertheless,
that the Court should not issue the declaration sought by the Plaintiff, but
rather stay the proceedings, because they constitute
an abuse of process. The Defendants submit that they suffered substantial prejudice
as a result of the delay for which they are not responsible.
[20]
The Defendants applied for passports
several times in 2002, but were unable to obtain them. They were able to
obtain “limited” passports in 2003 with strict conditions. The effect of the
refusal to issue regular passport has been to preclude the Defendants from
traveling to visit family abroad and affected Mr. Parekh’s employment
opportunities. Further, their application to sponsor their daughter, who was
born in the United States, has not been processed pending the finalization of the
revocation proceedings.
[21]
While the Defendants would have
accepted, and were indeed expecting, a revocation of their citizenship after
their guilty pleas in 2002, the time elapsed since then is no longer
reasonable. Considering that they would not be subject to deportation if their
citizenship were revoked, and that they have been denied many of the benefits
of citizenship for so long, it would be unfair to let them lose their
citizenship now and have them wait five more years before they can regain it.
[22]
In the alternative, if the Court declines to
stay the proceedings, it should order that any eventual revocation of the Defendants’
citizenship be “backdated” by the Governor in Council to the date on
which it would have occurred if the process had been speedy. In the further
alternative, the Court should issue a declaration that abuse of process has
affected these proceedings and order the Governor in Council to fashion an
appropriate remedy.
ANALYSIS
Misrepresentation,
fraud, or concealing material circumstances
[23]
The undisputed evidence demonstrates that the
Defendants knowingly concealed extensive absences from Canada. Therefore, I find that they obtained
their citizenship by misrepresentation, fraud, or concealing material
circumstances. The sole remaining issues are whether these proceedings
constitute an abuse of process and, if so, what the appropriate remedy is.
Abuse
of Process
[24]
Generally speaking, a court
will find that an attempt to apply or enforce legislation has become an abuse
of process when the public interest in the enforcement of legislation is
outweighed by the public interest in the fairness of administrative or legal
proceedings; see Blencoe v. British Columbia (Human Rights
Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at par. 120, where the test
is set out as follows:
In
order to find an abuse of process, the court must be satisfied that, “the
damage to the public interest in the fairness of the administrative process
should the proceeding go ahead would exceed the harm to the public interest in
the enforcement of the legislation if the proceedings were halted” ([Brown, Donald J. M., and John M. Evans. Judicial Review of
Administrative Action in Canada. Toronto: Canvasback, 1998 (loose-leaf)], at
p. 9-68). According to L'Heureux-Dubé J. in [R. v.
Power, [1994] 1 S.C.R. 601], at p. 616, “abuse of process” has been characterized in
the jurisprudence as a process tainted to such a degree that it amounts to one
of the clearest of cases. In my opinion, this would apply equally to abuse of
process in administrative proceedings. For there to be abuse of process, the
proceedings must, in the words of L'Heureux-Dubé J., be “unfair to the point
that they are contrary to the interests of justice” (p. 616). “Cases of this
nature will be extremely rare” (Power, supra, at p. 616). In the
administrative context, there may be abuse of process where conduct is equally
oppressive.
[25]
Such a situation can arise as a result
of undue delay in the enforcement of legislation. This will often be so when
delay causes the hearing of the matter to become unfair (for example, because
memories of witnesses have faded or evidence has otherwise become unavailable).
However, Justice Bastarache, speaking for the majority of the Supreme Court
in Blencoe, above, at par. 115, was “prepared to
recognize that unacceptable delay may amount to an abuse of process in certain
circumstances even where the fairness of the hearing has not been compromised.”
Justice Lebel, dissenting in part, but not on this issue, put the point
more forcefully, at par. 154: “[a]busive administrative delay is wrong and it
does not matter if it wrecks only your life and not your hearing.”
[26]
In order for delay to amount to abuse of process,
“the delay must have been unreasonable or inordinate.” (Blencoe, above, at par. 121.) Delay must not
only be greater than normal, but also have caused the defendant a
substantial prejudice. In other words, it must be “unacceptable
to the point of being so oppressive as to taint the proceedings.” (Ibid.)
[27]
The analysis of the reasonableness of
administrative delay in a particular case is factual and contextual. As Justice Bastarache explained at par. 122, ibid.,
[t]he determination
of whether a delay has become inordinate depends on the nature of the case and
its complexity, the facts and issues, the purpose and nature of the
proceedings, whether the respondent contributed to the delay or waived the
delay, and other circumstances of the case. As previously mentioned, the
determination of whether a delay is inordinate is not based on the length of
the delay alone, but on contextual factors, including the nature of the various
rights at stake in the proceedings, in the attempt to determine whether the
community’s sense of fairness would be offended by the delay.
[28]
Justice Lebel, for his part, also insisted on the need for a
contextual analysis. He summarized, in Blencoe, at par. 160:
three main factors to be balanced in assessing the
reasonableness of an administrative delay:
(a) the time taken compared to the inherent time
requirements of the matter before the particular administrative body, which
would encompass legal complexities (including the presence of any especially
complex systemic issues) and factual complexities (including the need to gather
large amounts of information or technical data), as well as reasonable periods
of time for procedural safeguards that protect parties or the public;
(b) the causes of delay beyond the inherent time
requirements of the matter, which would include consideration of such
elements as whether the affected individual contributed to or waived parts of
the delay and whether the administrative body used as efficiently as possible
those resources it had available; and
(c) the impact of the delay, considered as encompassing both
prejudice in an evidentiary sense and other harms to the lives of real people
impacted by the ongoing delay. This may also include a consideration of
the efforts by various parties to minimize negative impacts by providing information
or interim solutions.
[29]
I now will consider each of the factors
outlined by Justice Lebel in turn.
(a) Time Taken Compared to the Inherent Time Requirements
[30]
The first of these is the time taken compared to the inherent
time requirements for this matter. At trial, Suzanne Demers,
the CIC case analyst currently handling the Defendants’ file, testified
that a typical revocation case might take a couple of years to conclude, depending
on the complexity of the case. The time actually elapsed between the moment CIC
was aware of the defendants’ fraud and the issuance of the statement of claim
in this case – five years – is thus rather long even for a typical case.
[31]
Ms. Demers explained that normally a substantial period of
time might be necessary to collect evidence, for example when the help of
Canadian diplomatic missions abroad is needed.
[32]
However, the present case is not complex. It does not require unraveling
mysteries of long-forgotten events on far-away battlefields. The facts here
are, on the contrary, clear and simple. The Defendants have, in 2002, pleaded
guilty to the charges of making false representations on their citizenship
applications. They thus admitted the facts on which these proceedings are
based. They have never gone back on that admission. On the contrary, on both the original and the updated H&C applications Mr Parekh
clearly stated that he and his wife had resided in the US for over a year between 1999 and 2000. He
repeated this admission in March 2006, in a letter to CIC,
referred to at trial as “the confession,” outlining his and his wife’s
residence history. This letter was received by a local office and apparently
did not make its way to the officers handling the revocation proceedings
against the Defendants, even though the local office had been aware of these
proceedings.
[33]
The case is so simple that no piece of evidence was shown at trial
which could explain the delay. While Ms Demers suggested
that background investigations may have been ongoing between the drafting of
the first memorandum to the Minister recommending revocation of the Defendants’
citizenship in 2004 and the issuance of the statement of claim in 2008, there
is no evidence that they were. In fact, Ms Demers was unable to show any
new evidence, with one minor exception, gathered between May 2003 and June 2008.
The only developments in this case during that period were the memoranda to the
Plaintiff recommending the revocation of the Defendants’ citizenship in
December 2004 and again in 2006.
[34]
Nor is this a case where the administrative process was,
as in Blencoe, slowed down by the procedural safeguards that allow for
the participation of the person concerned. On the contrary, the defendants were
kept completely in the dark, so that by 2006, with the time elapsed, Mr. Parekh
no longer believed that they were subject to revocation proceedings, so much
that he did not check the corresponding box on his daughter’s updated H&C
application, which he had checked on the original application in 2003. Ms.
Demers explained that CIC never considered interviewing the defendants – its
policy being to let persons it investigates fully enjoy the benefits of
citizenship until formal proceedings to revoke it are commenced.
[35]
Based on the evidence before me, I
conclude, for the first factor, that the length of the administrative
proceedings in this case was neither normal nor due to any complexities of the
case.
(b) Causes of the delay
[36]
The second factor to consider is the cause of the delay beyond
the inherent time requirements of this matter. The RCMP became aware of the Defendants’
misrepresentation by March 2001. Yet the Plaintiff took no action to
have their citizenship revoked until he served notice of his intention to do so
in January 2007.
[37]
In November 2002, the Defendants were convicted, pursuant to
paragraph 29(2)(a) of the Citizenship Act, of making a false
representation, committing fraud, or concealing material facts in order to
obtain their citizenship. There is no explanation for the delay of 6 months
until the case management branch of CIC became aware of their convictions.
[38]
Once it did, the case analyst then responsible for the file
drafted a memorandum, dated June 10, 2003, to the branch manager, recommending
that CIC proceed with revocation “given that we have convictions under s. 29.”
The branch manager gave his approval on the same day, but nothing more was
done.
[39]
There is no satisfactory explanation for the delay of three and a
half years, from June 2003 to December 2006, to move the revocation process
forward. On December 14, 2004, and again on December 22, 2004,
the case analyst then working on the file mentioned, in an email message, that
no progress had been made on it and that it was necessary to gather more
evidence. However, the next day, he drafted a memorandum to the Minister of
Citizenship and Immigration, recommending the revocation of the defendants’
citizenship.
[40]
Thus I cannot accept the Plaintiff’s argument that more evidence
was needed before a notice of revocation could be issued. It is clear, from the
documentary evidence and the testimony given at trial that none was gathered. The memorandum on the basis of which the Plaintiff finally
issued the notices of revocation in December 2006 was substantially similar to
the one prepared two years earlier, in December 2004. One wonders what
additional evidence was needed other than that on the basis of which the RCMP
obtained the Defendants’ conviction, and indeed that of the conviction itself.
If, however further evidence was needed, it was already in CIC’s possession, in
the shape of the Defendants’ daughter’s H&C application and the letter sent
by Mr. Parekh to CIC.
[41]
The Plaintiff further points to changes at the head of the
department, which resulted in a continuous administrative reorganization at
CIC. However, I note that in Canada (Minister
of Citizenship and Immigration) v. Copeland,
[1998] 2 F.C. 493 (F.C.T.D.), above, at par. 65, he “conceded that the delay from August 1993 to March 13, 1995,
the date of the notice of revocation, [that is, “only” one year and a half] was
unjustifiable on the basis that it was caused solely by a departmental
reorganization.”
[42]
The Minister is of course entitled to
change his mind. On this point, however, I agree with the words of
Justice Cullen, in Canada
v. Sadiq,
(1990) [1991] 1 C.F. 757, [1990] F.C.J. No.
1102 (QL), at par. 31: “this case was not given the priority it
deserved. Revocation of one’s Canadian citizenship is a serious matter and
called for more immediate responses than are evident here.”
[43]
Finally, there is no satisfactory
explanation for a delay of almost one and a half years between the Defendants’
request that the matter be referred to the Federal Court and the issuance of
the statement of claim commencing this action. Ms. Demers stated that more
evidence was required before bringing this action to Court. I do not accept
this explanation. I note that in this regard, Ms. Demers testified that the only additional evidence collected in the time that elapsed
between the Defendants’ request that the matter be referred to the Court and
the issuance of the statement of claim was the transcript of the hearing that
lead to their conviction of an offense under the Citizenship Act in 2002.
[44]
In final submissions at trial, the Plaintiff
argued that the Defendants are responsible for this delay, since they could
have forgone the opportunity to refer the case to the Court. I am unable
to accept this argument. The Defendants cannot be blamed for asserting
their rights. In Charkaoui v. Canada (Citizenship and Immigration), 2007
SCC 9, [2007] 1 S.C.R. 350, at par. 114, the Supreme Court stated that recourse
by a party to procedural and constitutional challenges reasonably open to that
party in the circumstances ought not to count against that party. Further, the
Defendants do not invoke the delay caused by the actual court proceedings in
this case. The Citizenship Act allows them to refer this case to the
Federal Court, and when making that reference, they could not have
expected that they would wait for almost a year and a half for the court action
to commence.
[45]
I therefore conclude, on the second factor, that
the Plaintiff alone bears the entire responsibility for the delay in
this case.
(c) Impact of the Delay
[46]
I turn to the question of the impact which
the delay had on the Defendants. The Defendants submit that the delay in the
revocation proceedings caused them a great deal of uncertainty and distress; that it has deprived them of their ability to travel, which
had an adverse effect on both their family life and Mr Parekh’s employment
prospects; and that it has resulted in the treatment of their daughter’s
H&C application being put on hold.
[47]
Mr. Parekh testified at trial that, initially, they
were anticipating the revocation of their citizenship as a consequence of their
guilty plea, and that they were willing to accept it. At that time, they were
told by an RCMP officer that they would hear from CIC within the following year
or two. However, no action was taken and they did not hear from CIC for more
than four years after pleading guilty in November 2002; indeed by 2006, Mr.
Parekh no longer believed that the revocation proceedings against them were
active. He explained with emotion his feelings of distress caused by the
continued uncertainty over his status in Canada and the impact it had on his family. His testimony was credible and
compelling. I find as a fact that the delay in the treatment of the possible
revocation of their citizenship has caused the Defendants great psychological
stress.
[48]
Uncertainty over their status also had a practical prejudicial impact on the Defendants’ lives. Several of their
applications for passports were denied. They were only issued limited-time
passports in 2003 to allow them to visit an ailing
relative in India, and not before the Defendants had incurred significant expenses on
futile applications and airplane tickets which they were unable to use without
passports. Although these passports were purportedly
valid for nine months, the Defendants were told that they would only be valid
for two months, and that they would have to surrender them upon their return
from India. In 2005, Passport Canada informed the Defendants that it would only consider issuing them
limited-time passports if they provided a justification, such as a family
emergency, for their need to travel. A further application for a passport was
rejected in 2009.
[49]
Thus the Defendants’ applications for Canadian
passports were being denied even as no action was being taken to revoke
their citizenship. The documents put in evidence at trial and the testimony
of Ms. Demers establish that Passport Canada communicated with CIC and inquired
about the Defendants’ citizenship status. CIC advised Passport Canada that they intended to proceed with the
revocation of the Defendants’ citizenship. It is a reasonable inference for the
Court to find that Passport Canada’s position was a direct consequence of CIC’s
advice.
[50]
The Federal Court of Appeal held, in Canada (Attorney General) v. Kamel, 2009 FCA 21, that a refusal to deliver a passport to a Canadian
citizen is an infringement of subsection 6(1) of the Charter. As Justice
Robert Décary, writing for the Court, pointed out at par. 15, “[t]he fact that there is almost
nowhere a Canadian citizen can go without a passport and that there is almost nowhere
from which he or she can re‑enter Canada without a passport are, on their face, restrictions on a
Canadian citizen’s right to enter or leave Canada, which is, of course,
sufficient to engage Charter protection.”
[51]
Further, I find that the uncertainty
which CIC entertained over the Defendants’ status in Canada also led to its
failure to process their daughter’s H&C application. In January 2007, CIC
took the position that s. 136 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (IRPR), which provides that if a would-be
sponsor is subject to, inter alia, citizenship revocation proceedings,
“the sponsorship application shall not be processed until there has been a
final determination of the proceeding,” prevented the processing of the H&C
application. This position was based on a misunderstanding of section 136 of
the IRPR, which does not apply to H&C applications. Nevertheless,
but for the inordinate delay which affected them, the revocation proceedings
against the Defendants would have concluded by 2007, and in all likelihood much
earlier, so that CIC’s misinterpretation of the IRPR would not have
delayed the treatment of the Defendants’ daughter’s H&C application.
[52]
I
am mindful of Justice Bastarache’s comment in Blencoe, above, at par.
120, reiterating earlier dicta to the effect that delay or other instances of
unfairness only amount to abuse of process in “the clearest of cases.” In my
opinion, this is such a case. Revocation of citizenship is not an ordinary
civil or administrative proceeding. What is at stake is not liability for a sum
of money or the issuance of some permit. Along with Justice Iacobucci, and the
unanimous Supreme Court in Benner v. Canada (Secretary of State),
[1997] 1 S.C.R. 358, “I cannot imagine an interest more
fundamental to full membership in Canadian society than Canadian citizenship.” Of
course, if these interests had only been affected by a timely revocation
procedure, the Defendants would have no-one but themselves to blame. But to the
extent that they have been interfered with by the state-caused delays in this
procedure, the state has indeed impacted greatly on their lives.
[53]
It is important to point out that this case is
unlike those, such as Canada (Secretary of State) v. Charran, (1988), 6 Imm. L.R. (2d) 138, and Copeland, above, in which this Court considered that delays in citizenship
revocation proceedings were, if anything, to the defendants’ advantage, since
they allowed them to remain in Canada rather than be deported. The Defendants
in the present case gain no advantage from the delays in the revocation of
their citizenship.
[54]
The Defendants cannot be deported and would
remain in Canada even if their citizenship were revoked: subsection 46(2) of
the Immigration and Refugee Protection Act, S.C. 2001 c. 27, provides
that “[a] person who ceases to be a citizen under paragraph 10(1)(a) of the Citizenship
Act, other than in the circumstances set out in subsection 10(2) of that
Act, becomes a permanent resident.” Subsection 10(2) of the Citizenship Act
refers to persons who obtained admission to Canada as permanent residents as a result of misrepresentation, fraud, or
concealing material circumstances. Therefore, if the Defendants’
citizenship is revoked, they will become permanent residents again.
[55]
Pursuant to paragraph 22(1)(f) of the Citizenship
Act, five years after their citizenship is revoked, they would be
able to make a new application for citizenship. Indeed, had the Plaintiff not
delayed proceeding with the revocation of the Defendants’ citizenship for several
years, the Defendants could already have applied for, and might have obtained,
Canadian citizenship again. Therefore, if these proceedings are not stayed, the
Defendants’ inability to apply for citizenship for the next five or more years will
be a prejudice directly resulting from the Minister’s delay.
Abuse of process: conclusion
[56]
In these circumstances I find that the
delays which have marred these proceedings are inordinate and indeed
unconscionable. Nothing in the circumstances of the case
justified them. They are not the consequence of the complexity of the case
or of any dilatory tactics employed by the Defendants, but of bureaucratic
indolence and failure to give the matter the attention it deserved given the
rights and interests at stake. The evidence clearly establishes that the
Defendants had repeatedly admitted to the misrepresentations and that all the information
necessary to proceed with the revocation of their citizenship was already
available to CIC.
[57]
Instead of using this information, CIC
let the proceedings drag on, effectively depriving the Defendants of key
benefits of citizenship, such as the ability to travel. In my view, to let the
proceedings go on would mean to punish the Defendants twice; once
during the five year period before the commencement of this action, and again
for a period that could be dragging for many years before a “possible”
revocation and a further five years afterwards to be able to make a new
application for citizenship.
[58]
In these circumstances, I find that the
proceedings are taking on an oppressive character, and that the public interest
in putting an end to proceedings that are abusive and oppressive outweighs the
interest in the enforcement of the Citizenship Act, which does not
contemplate deprivation of citizenship for more than five years in a case such
as the Defendants’.
[59]
Thus, I am satisfied that the test for
abuse of process has been met in the present case:
the damage to the public interest in the fairness of the
administrative process should the proceeding go ahead would exceed the harm to
the public interest in the enforcement of the legislation if the proceedings
were halted.
(Blencoe, above at
par. 120, citing Brown and Evans, above, at 9-68.)
I now turn to the question of the remedy to which the Defendants
are entitled.
Remedy
[60]
In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, the Supreme Court, reversing
a stay ordered by the Federal Court, explained, at par. 90, that:
[i]f it appears that the state has conducted a prosecution
in a way that renders the proceedings unfair or is otherwise damaging to the
integrity of the judicial system, two criteria must be satisfied before a stay
will be appropriate. They are that:
(1) the prejudice caused
by the abuse in question will be manifested, perpetuated or aggravated through
the conduct of the trial, or by its outcome; and
(2) no other remedy is
reasonably capable of removing that prejudice.
(The Supreme Court referred to R. v.
O’Connor, [1995] 4 S.C.R. 411, at par. 75.)
Furthermore, “in certain cases, where
it is unclear whether the abuse is sufficient to warrant a stay, a compelling
societal interest in having a full hearing could tip the scales in favour of
proceeding” (Tobiass, above, at par. 92).
[61]
In my opinion, these criteria are met
in this case.
[62]
First, the outcome of this action will
manifest and in all likelihood perpetuate the abusive delays which have
tarnished these proceedings. The issuance of the declaration sought by the Plaintiff
would merely allow him to prepare a report to the Governor in Council, who may
or may not then revoke the Defendants’ citizenship. The sword of uncertainty
which the Plaintiff has left hanging over the Defendants will remain where it
has been for the past seven years. During that time, the Defendants will be
effectively deprived the benefits of citizenship, and the resolution of
their situation will be dependant on it finally getting the attention it
deserved years ago.
[63]
Furthermore, as explained above, had
the Minister been timely in his effort to have their citizenship revoked, this
could have been done so long ago that they would by now have been eligible to
reapply for Canadian citizenship. Thus, allowing the action to go ahead will deprive
the Defendants of what was contemplated by Parliament at paragraph
22(1)(f) of the Citizenship Act.
[64]
Therefore I find that “the carrying forward of the [proceedings against the Defendants] will
offend society’s sense of justice.” (Tobiass, above, at par. 91.) The Plaintiff suggests
that the Defendants will have the opportunity to have the prejudice done to
them corrected by making representations to the Governor in Council if the
revocation proceedings go ahead and to further litigate the matter by applying
for judicial review of any decision made by the Governor in Council. In my
view, this is unacceptable. It would perpetuate the uncertainty over their
status and continue for many years the deprivation of the rights of citizenship
which they have been unfairly subjected to. In effect, this would amount to
double punishment, by depriving the Defendants of the possibility to regain
their citizenship for twice as long as Parliament intended in the Citizenship
Act.
[65]
Second, there is no practicable
alternative remedy that would obviate the need for a stay. The plaintiff’s reliance
on Tobiass, above, in this context is misplaced. The problem in
that case was an appearance of bias by certain judges of the Federal Court
Trial Division. The Supreme Court solved it by ordering that the case be
reconsidered by other judges. No such solution can put to right the wrongs
inflicted on the Defendants by the administrative delays which affected their
case. As for the only alternative remedy actually put forward by the Plaintiff,
an award of no costs, it will do absolutely nothing to rectify the harm to the Defendants
which has already been done and which will be done in the future if the
revocation proceedings go on.
[66]
The Defendants put more efforts than
the Plaintiff in suggesting alternative remedies. They proposed that, if the
Court rejects their arguments in favour of a stay and issues the declaration
sought by the Plaintiff, it also declare that the proceedings against them
amounted to abuse of process. They further suggested that the Court order that
an eventual revocation of their citizenship by the Governor in Council be
“backdated” to December 2004, the date when the first memorandum recommending
it ought to have been presented to the Plaintiff. This would of course allow
them immediately to reapply for Canadian citizenship. In the further
alternative, they suggested that, in addition to declaring that these
proceedings are abusive, the Court require the Governor in Council to solve
this problem. (Their inspiration for such a remedy is said to be the Supreme
Court’s decision in Canada (Prime Minister) v. Khadr, 2010 SCC 3.)
[67]
The Plaintiff opposed the granting of
any of these remedies, arguing that they exceed the Court’s narrow jurisdiction
in an action such as this. After consideration, I agree with the
Plaintiff for the following reasons.
[68]
With respect to the proposed order that
the Governor in Council “backdate” the revocation of the Defendants’
citizenship, I note that the Governor in Council is not a party to these
proceedings. I do not see how the Court could order a person or entity to do or
not to do anything as a result of proceedings in which he, she or it did not
take part. The alternative order suggested by the Defendants, that the Governor
in Council find a suitable remedy for the abusive proceedings to which they
have been subjected, suffers from the same defect. In addition, Khadr is
no authority for the proposition that the Court may make such an order. The
Supreme Court’s disposition – as opposed to its reasons – consists only
of a declaration, and does not include any order to the Prime Minister or
anyone else (see Khadr, above, at par. 48).
[69]
As for a declaration that these
proceedings amount to an abuse of process – similar to one which the Supreme
Court did in fact grant in Khadr – it would, in my opinion, exceed the
Court’s jurisdiction under subsection 18(1) of the Citizenship Act. In a
passage quoted with approval in Tobiass, above, at par. 52, the Federal
Court of Appeal said of this Court’s decision under subsection 18(1) of the Citizenship
Act that “[a]lthough the decision followed a hearing at which much evidence
was adduced, it was merely a finding of fact by the court … The decision did not finally determine any legal
rights.” (Luitjens v.
Canada (Secretary of State),
(1992), 9 C.R.R. (2d) 149 at 152.) In other
words, the jurisdiction of this Court, in proceedings brought under subsection
18(1) of the Citizenship Act, is confined to answering a single factual
question: did the defendants obtain, retain, renounce or resume citizenship by
false representation or fraud or by knowingly concealing material
circumstances? The declaration sought by the Defendants does not answer that
question, and is thus outside the Court’s substantive jurisdiction.
[70]
Of course, notwithstanding the limits
of its substantive jurisdiction in certain kinds of proceedings, the Court
remains the master of its own process, in accordance with the Federal Courts
Act, R.S.C. 1985, c. F-7, the Federal
Courts Rules, SOR/98-106, and its
inherent powers. A stay of the proceedings, an award of costs, or the direction
for certain judges to preside over a proceeding are all matters which the Court
has the power to control as part of its process, and thus the Court may order
these remedies without overstepping its role under subsection 18(1) of the Citizenship
Act.
[71]
Thus, for example, the Court
may stay proceedings under subsection 18(1) of the Citizenship Act pursuant
to paragraph 50(1)(b) of the Federal Courts Act, which provides that it
“may, in its discretion, stay proceedings in any cause or matter … where for
any … reason it is in the interest of justice that the proceedings be stayed.”
(Tobiass, above, at par. 61.) It also has a “full discretionary power
over the amount and allocation of costs and the determination of by whom they
are to be paid,” pursuant to paragraph 400(1) of the Federal Courts Rules.
[72]
In sum, the carrying forward of the revocation
proceedings against the defendants will offend society’s sense of justice, and
no remedy other than a stay is available to this court to prevent this from
happening. This is also not a case where “a compelling societal interest …
could tip the scales in favour of proceeding.” (Tobiass, at par. 92.) While I do not make light of the Defendants’ misrepresentation,
society’s interest in having the revocation pursued in this case
cannot be compared to “Canada’s
interest in not giving shelter to those who concealed their wartime
participation in acts of atrocities,” which was at stake in Tobiass,
above, at par. 93.
CONCLUSION
[73]
Dissenting in part, but not on this point, Justice
Lebel spoke eloquently about the importance of ensuring that legal proceedings
be conducted without undue delay, at par. 140, ibid.:
Unnecessary
delay in judicial and administrative proceedings has long been an enemy of a
free and fair society. At some point, it is a foe that has plagued the life of
almost all courts and administrative tribunals. It’s a problem that must be
brought under control if we are to maintain an effective system of justice,
worthy of the confidence of Canadians. The tools for this task are not to be
found only in the Canadian Charter of Rights and Freedoms, but also in
the principles of a flexible and evolving administrative law system.
[74]
These remarks resonate in the present
case. Those responsible for the administrative delays have failed
both the Defendants, to whom they had a duty to act fairly, and the public
which they serve, and to whom they owe it to ensure that legislation is
enforced effectively and in a timely fashion.
[75]
This Court finds that the
Plaintiff’s conduct in this case constitutes an abuse of process and orders
that the proceedings be stayed, the whole with costs to the Defendants.
JUDGMENT
THIS COURT
ORDERS that the
proceedings be stayed, the whole with costs to the Defendants.
“Danièle Tremblay-Lamer”
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