Date: 20100818
Docket: T-1852-09
Citation: 2010 FC 822
Ottawa, Ontario, August 18, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
MEI ZHEN ZHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Mei Zhen Zhan, was denied Citizenship on the ground that, at the
time of the decision by the Citizenship Judge, there were outstanding charges
against her in respect of indictable offences contemplated by paragraph
22(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 (the “Act”). At that
time, the Citizenship Judge was aware that those charges had been stayed and
that the one-year period within which those charges could be reinstated had not
expired.
[2]
Ms.
Zhan seeks
to have the decision set aside and remitted to another Citizenship Judge for
re-determination on the grounds that the Citizenship Judge erred by:
(i)
finding
that she was, at the time of the hearing, charged with such offences;
(ii) erroneously stating in
his decision that the rejection of her application was based on the fact that
she had been convicted of an indictable offence contemplated by subsection
22(2) of the Act; and
(iii) failing to make
his decision in accordance with the principles of natural justice and procedural
fairness, by failing, among other things, to disclose to her advice that he had
received from his supervisor stating that a stay of proceedings is considered
to be a suspension of proceedings that remains valid for one year.
[3]
For
the reasons that follow, this appeal is dismissed.
I. Background
[4]
Ms.
Zhan is a citizen of China. She became a permanent
resident in Canada on May 29, 1996. On
March 20, 2008, she submitted an application for Canadian citizenship.
[5]
On
May 27, 2008, she was charged with a number of offences, including possession
of heroin and another controlled substance for the purpose of trafficking;
possession of cocaine, cannabis and other controlled substances; and possession
of the proceeds of crime.
[6]
In
July 2008, she received a letter, presumably from Citizenship and Immigration
Canada (CIC), requesting a copy of her fingerprints within 30 days. In an
affidavit submitted to this Court, she explained that she refrained from responding
to that letter because, at that time, she was facing a number of criminal
charges.
[7]
On
May 12, 2009, the charges against her were stayed.
[8]
Sometime
in 2009, she received a notice requesting her to attend a citizenship interview
on July 15, 2009.
[9]
In
a letter to CIC dated July 12, 2009, her former counsel noted, among other
things, that Ms. Zhan had not responded to the request for a copy of her
fingerprints. She then asked to be advised if Ms. Zhan should respond to that
request prior to the interview scheduled for July 15, 2009. However, that
letter did not disclose the fact that Ms. Zhan had been charged with any
offences or that those charges had been stayed.
[10]
According
to Ms. Zhan’s affidavit, she was asked during the subsequent interview with CIC
whether she had a criminal record. She responded that she had previously been
charged with “some offences, but all the charges have been stayed by the crown
prosecutor. Therefore I do not have any criminal record.”
[11]
In
response, she was requested during the interview to submit a copy of her
fingerprint records, a copy of the court record of her charges and the
disposition of those charges, and a completed Residence Questionnaire. On July 21, 2009, Ms.
Zhan mailed that information to CIC. Among other things, that information
indicated that the stay of proceedings was issued on May 12, 2009.
II. The Decision Under Review
[12]
In a
short letter, dated September 14, 2009, Ms. Zhan was informed that her
application for Canadian citizenship had not been approved. Among other things,
the letter noted that Ms. Zhan was “presently charged” with several listed
offences. The letter then stated that this was:
…
not an appropriate case for the exercise of discretion under subsections 5(3)
and 5(4) of the Citizenship Act because Section 22(2) specifically provides
that whenever it applies, ‘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 if,
(a)
during the three year
period immediately preceding the date of the person’s application, or
(b)
during the period
between the date of the person’s application and the date that the person would
otherwise be granted citizenship or take the oath of citizenship,
the person has been convicted of an offence
under subsection 29(2) or (3) or of an indictable offence under any Act of
Parliament.
[13]
The
letter concluded: “Pursuant to subsection 14(3) of the Citizenship Act, you are
therefore, advised that, for the above reasons, your application for
citizenship is not approved”. Ms. Zhan was then advised of her options.
[14]
Accompanying
the letter was a form identifying the reasons for the refusal as follows:
“Section 22. Stay of proceedings valid to 11 May 2010. I cannot approve the
application for C.C.”.
[15]
The
specific provision in section 22 that applied to Ms. Zhan at the time of the
Citizenship Judge’s decision was paragraph 22(1)(b), rather than subsection
22(2). Paragraph 22(1)(b) states:
|
Citizenship
Act, R.S.C. 1985, c.
C-29
Prohibition
22. (1) Despite anything in this Act, a person
shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1)
or take the oath of citizenship
…
(b) while the
person is charged with, on trial for or subject to or a party to an appeal
relating to an offence under subsection 29(2) or (3) or an indictable offence
under any Act of Parliament, other than an offence that is designated as a
contravention under the Contraventions Act;
…
|
Loi
sur la citoyenneté,
L.R.C. 1985, c. C-29
Interdiction
22.
(1) Malgré
les autres dispositions de la présente loi, nul ne peut recevoir la
citoyenneté au titre des paragraphes 5(1), (2) ou (4) ou 11(1) ni prêter le
serment de citoyenneté :
…
b)
tant qu’il est inculpé pour une infraction prévue aux paragraphes 29(2) ou
(3) ou pour un acte criminel prévu par une loi fédérale, autre qu’une
infraction qualifiée de contravention en vertu de la Loi sur les
contraventions, et ce, jusqu’à la date d’épuisement des voies de recours;
…
|
[16]
The Citizenship Judge’s reference to the stay of proceedings being
“valid to 11 May 2010” was based on section 579 of the Criminal Code,
R.S.C. 1985, c. C-46, which states as follows:
|
579. (1) The Attorney General or counsel instructed by him for
that purpose may, at any time after any proceedings in relation to an accused
or a defendant are commenced and before judgment, direct the clerk or other
proper officer of the court to make an entry on the record that the
proceedings are stayed by his direction, and such entry shall be made
forthwith thereafter, whereupon the proceedings shall be stayed accordingly
and any recognizance relating to the proceedings is vacated.
Recommencement
of proceedings
(2) Proceedings stayed in accordance with
subsection (1) may be recommenced, without laying a new information or
preferring a new indictment, as the case may be, by the Attorney General or
counsel instructed by him for that purpose giving notice of the
recommencement to the clerk of the court in which the stay of the proceedings
was entered, but where no such notice is given within one year after the
entry of the stay of proceedings, or before the expiration of the time within
which the proceedings could have been commenced, whichever is the earlier,
the proceedings shall be deemed never to have been commenced.
|
579.
(1) Le procureur
général ou le procureur mandaté par lui à cette fin peut, à tout moment après
le début des procédures à l’égard d’un prévenu ou d’un défendeur et avant
jugement, ordonner au greffier ou à tout autre fonctionnaire compétent du
tribunal de mentionner au dossier que les procédures sont arrêtées sur son
ordre et cette mention doit être faite séance tenante; dès lors, les
procédures sont suspendues en conséquence et tout engagement y relatif est
annulé.
Reprise
des procédures
(2) Les procédures arrêtées
conformément au paragraphe (1) peuvent être reprises sans nouvelle
dénonciation ou sans nouvel acte d’accusation, selon le cas, par le procureur
général ou le procureur mandaté par lui à cette fin en donnant avis de la
reprise au greffier du tribunal où les procédures ont été arrêtées; cependant
lorsqu’un tel avis n’est pas donné dans l’année qui suit l’arrêt des
procédures ou avant l’expiration du délai dans lequel les procédures auraient
pu être engagées, si ce délai expire le premier, les procédures sont réputées
n’avoir jamais été engagées.
|
III. The
Standard of Review
[17]
In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54, the Supreme Court observed
that Courts should exercise deference “where a tribunal is interpreting its own
statute or statutes closely connected to its function, with which it will have
particular familiarity.” It also observed that “[w]here the question is one of
fact, discretion or policy, deference will usually apply automatically” (para.
53). However, it then noted that “[a] question of law that is of ‘central
importance to the legal system … and outside the … specialized area of
expertise’ of the administrative decision maker will always attract a
correctness standard” (para. 55).
[18]
In my view, the issue that has been raised by
the Applicant with respect to the proper interpretation of paragraph 22(1)(b)
of the Act is not a question of law that is of central importance to the legal
system. It is a question that is narrowly confined to one section of the Act.
Accordingly, the standard of review applicable to this Court’s review of that
issue is reasonableness. (See also Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1
S.C.R. 339, at para. 44.)
[19]
In my view, the decision of my colleague Justice Mandamin in Yan
v. Canada (Minister of Citizenship and Immigration), 2009 FC
1153, at para. 15, is distinguishable on the ground that he followed
jurisprudence on this point rendered before the Supreme Court’s decisions in Dunsmuir,
above, and Khosa, above. As I read his decision, Justice Mandamin’s
reference to Dunsmuir was with respect to the standard of review
applicable to questions of mixed fact and law, while he relied on Mizani v.
Canada (Minister of Citizenship and Immigration), 2007 FC 698, at para. 7,
with respect to the standard applicable to pure questions of law, such as the
appropriate interpretation of section 14 of the Act. However, nothing turns on
this as I have found that the Citizenship Judge’s interpretation of paragraph
22(1)(b) of the Act is also correct.
[20]
The issue that has been raised with respect to the Citizenship
Judge’s reference to subsection 22(2) of the Act, rather than subsection 22(1),
in essence a question regarding the justification, transparency and
intelligibility of the decision. This issue is reviewable on a standard of
reasonableness (Dunsmuir, above, at para. 47).
[21]
The issue that has been raised with respect to procedural fairness
is reviewable on a standard of correctness (Dunsmuir, above, at paras.
55 and 79; Khosa, at para. 43).
IV. Analysis
A. Did
the Citizenship Judge err in finding that Ms. Zhan was, at the time of the
hearing, charged with an indictable offence?
[22]
Ms. Zhan submits that the Citizenship Judge erred in concluding
that she was “presently charged” with various offences. She asserts that the
effect of the stay of proceedings issued on May 12, 2009 in respect of all of
the charges that were laid against her was to place her in the same position as
a person who has never been charged with such offences. Accordingly, she
submits that it was an error to consider a stay of proceedings to be a
suspension of proceedings, and to deny her citizenship application based on the
fact that the Crown might recommence one or more of the charges that were laid
against her.
[23]
To support her position, she submits that the ambiguity in
paragraph 22(1)(b) of the Act with respect to this issue should be resolved by
having regard to the approach taken to stays of proceedings in the criminal law
jurisprudence. In this regard, she notes that in Ahmed v. Canada (Minister
of Citizenship and Immigration), 2009 FC 672, my colleague Justice
Mactavish considered and ultimately followed recent criminal law jurisprudence
after determining that this Court’s jurisprudence in the citizenship and
immigration context was of limited assistance in resolving a different issue
involving the interpretation of paragraph 22(1)(b) of the Act.
[24]
In Ahmed, the central issue was whether a hybrid offence
remains an indictable offence for the purposes of paragraph 22(1)(b) after the
Crown elects to proceed summarily. In resolving this issue, it was necessary to
have regard to the jurisprudence that had developed under paragraph 34(1)(a) of
the Interpretation Act, R.S.C. 1985, c. I-21, which provides:
|
Indictable and
summary conviction offences
34. (1) Where an enactment creates an offence,
(a) the
offence is deemed to be an indictable offence if the enactment provides that
the offender may be prosecuted for the offence by indictment;
…
|
Mise
en accusation ou procédure sommaire
34.
(1) Les
règles suivantes s’appliquent à l’interprétation d’un texte créant une
infraction:
a)
l’infraction est réputée un acte criminel si le texte prévoit que le
contrevenant peut être poursuivi par mise en accusation;
…
|
[25]
After considering the recent jurisprudence regarding this
provision of the Interpretation Act in the criminal law context, Justice
Mactavish concluded that “the character of a hybrid offence changes from
indictable to summary conviction, upon the crown electing to proceed summarily.”
She further concluded that the prohibition set forth in paragraph 22(1)(b) did
not apply to the Applicant in the case before her, because the Crown had
elected to proceed summarily in respect of the offences with which he had been
charged.
[26]
Ahmed is distinguishable
from the case at bar because it involved the interpretation of different words
in paragraph 22(1)(b) than are at issue in the present case, and because the
criminal law jurisprudence that Justice Mactavish followed concerned the
interpretation of another federal statute, namely, the Interpretation Act.
It is also important to note that the criminal jurisprudence in question was
not binding on Justice Mactavish, but was rather voluntarily reviewed and followed
by her after she determined that this Court’s jurisprudence on the issue was of
limited assistance.
[27]
The
specific criminal law jurisprudence that Ms. Zhan submits should be followed in
the case at bar consists of a trilogy of cases.
[28]
In
R. v. Larosa, [2000] O.J. No. 976, aff’d [2002] O.J. No. 3219 (C.A.), the
accused applied to set aside a stay of proceedings and to restore a direct
indictment filed against them. They had returned home to Canada after the
State of Texas alleged that
they had engaged in a conspiracy to traffic cocaine, without charging them. On
the same facts, the Canadian Crown preferred an indictment against the accused
alleging that they had participated in a conspiracy to import and traffic
cocaine. Texas authorities
then laid similar charges and initiated extradition proceedings. The accused
argued that the stay of proceedings issued in Canada was an abuse
of process. Their application was dismissed after it was determined that there
was no abuse of process or constitutional infringement. In the course of his
decision, Justice Watt observed, at para. 60: “Neither the trial judge nor the
person(s) whose prosecution is or are affected by the stay have a say in its
entry. Once the stay is entered, that contest between the persons charged and
the state has ended.”
[29]
In
the course of affirming Justice Watt’s decision, the Ontario Court of Appeal
quoted with approval, at para. 41 of its decision, the following observation by
Hollinrake J.A. in R. v. Smith (1992) 79 C.C.C. (3d) 70, at 80
(B.C.C.A), leave to appeal dismissed for delay, [1993] S.C.C.A. No. 7 (QL):
“When the stay has been entered there is no contest between the individual and
the state. The prosecution has come to an end. The position of the accused as
against the state is the same as if he had never been charged.”
[30]
In
Smith, above, which is the second of the three criminal law cases put
forth by Ms. Zhan, the respondent asserted that, having been charged and having
entered a plea on the charge, he was entitled to continue with his trial in the
hope of obtaining an acquittal. Such an acquittal would have been of potential
assistance to him in the event that extradition proceedings were initiated
against him in connection with the same offence in the United States. In a
unanimous judgment on behalf of the Court, Hollinrake J.A. concluded, at para.
20, that “ … once the Crown exercises its s. 579 right to direct a stay be
entered, the judge hearing the prosecution is functus and without
jurisdiction to proceed further.”
[31]
The
third criminal law case relied upon by Ms. Zhan is R. v. Pawluk, [2002]
S.J. No. 186 (Sask. Q.B.). In that case, the accused submitted that it was an
abuse of process for the Crown to proceed on two indictments arising from the
same events. In response, the Crown directed a stay of proceedings on the first
indictment and advised that it intended to proceed only on the second
indictment. Justice Foley found that, as a result of the stay issued by the
Crown in respect of the first indictment, there was no longer a proceeding
before the Court and that, consequently, there was no issue between the Crown
and the defendant which was capable of constituting an abuse of process. In
short, it was concluded that the second indictment could not proceed because it
was part of the proceedings that had been stayed.
[32]
In
the course of reaching his conclusion, Justice Foley quoted with approval, at
para. 25 of his decision, a passage from Salhany, Canadian Criminal
Procedure, 6th ed., (Toronto: Canada Law Book,
2001), at p. 6-73, which included the following comments in respect of section
579 of the Criminal Code:
Under
this section, any proceedings stayed may be recommenced without laying a new
charge or preferring a new indictment by the Crown giving notice to the clerk
of the court in which the stay of proceedings was entered. However, notice must
be given within one year after the entry of the stay, otherwise the proceedings
shall be deemed never to have been commenced. […]
[33]
I
disagree with Ms. Zhan’s position regarding the relevance of the aforementioned
criminal law jurisprudence to the case at bar and with her interpretation of
paragraph 22(1)(b) of the Act.
[34]
In
Re: Holvenstot, [1982] 2 F.C. 279, this Court was presented with a
situation that was similar to the one at hand. In short, the applicant was
denied citizenship on the basis that, at the time of the Citizenship Judge’s
decision, she was charged with the indictable offence of cultivating marijuana.
That charge had been laid on August 18, 1990 and stayed on March 18, 1981. The
decision of the Citizenship Judge was rendered on March 31, 1981.
[35]
Justice
Verchere agreed with the Citizenship Judge that, in and of itself, the stay of
proceedings did not alter the fact that the applicant remained a person charged
with an indictable offence and therefore was subject to the prohibition set
forth in what was then paragraph 20(1)(b) of the Act (now paragraph 22(1)(b)).
He based his agreement on this point on the fact that, pursuant to what is now
s. 579 of the Criminal Code, there is no constraint on the Crown’s
future action on the charge, by virtue of the stay alone. In this regard, he
observed, at para. 4, that during the one year period mentioned in that
provision, “the Crown is expressly permitted to continue proceedings on the
stayed charge. Furthermore, it has been held that apart entirely from
subsection 508(2) [now 579(2)] proceedings on a stayed charge may be continued
without any need to proceed by way of fresh prosecution for the same offence.”
[36]
However,
in view of the fact that the applicant was able to obtain a letter from the
Crown advising her that the Crown did not intend to take any further
proceedings against her on the charge in question, Justice Verchere concluded
that (i) the Crown’s letter effectively estopped it from reinitiating
proceedings on the stayed charge, and (ii) this rendered the charge “a nullity
for practical purposes and thus put it outside the scope and purview of
paragraph 20(1)(b)” of the Act.
[37]
In
reaching this conclusion, Justice Verchere observed that “it can be fairly
assumed that [the applicant’s solicitor who requested the Crown’s letter] was
seeking some action or some statement that would take the charge outside the
operation of the prohibition”, and that “there was no suggestion that the Crown
officers responsible for the stay and for the letter … had not considered and
intended that such a result would ensue.”
[38]
In
the case of bar, the applicant, who was represented by counsel, does not appear
to have sought and, in any event, did not produce any such letter from the
Crown. Therefore, for the reasons expressed by Justice Verchere, with which I
agree, she remained a person charged with one or more indictable offences, as
contemplated by paragraph 22(1)(b) of the Act.
[39]
In
my view, the plain meaning of subsection 579(2) of the Criminal Code is
that proceedings that have been stayed have been suspended, but not terminated
or nullified. It is only after the expiry of one year after the entry of the
stay of proceedings that the proceedings are “deemed never to have commenced”,
if the proceedings are not reinstated. Prior to that time, a person whose
charges are the subject of the stay remains a person who “is charged,” within
the meaning of paragraph 22(1)(b) of the Act, assuming that the charges are in
respect of one or more indictable offences contemplated by that provision.
[40]
I
do not believe that it is appropriate to interpret paragraph 22(1)(b) of the
Act based on the jurisprudence regarding the effect of a stay in criminal law.
In my view, there are important reasons why a different approach is warranted
in the area of immigration and citizenship.
[41]
When
a criminal proceeding is instituted, it is clear that important rights
enshrined in the Canadian Charter of Rights and Freedoms, particularly
those identified in section 7 of the Charter (the right to life, liberty
and security of the person, and the right not to be deprived thereof except in
accordance with the principles of fundamental justice), are at risk. In this
context, the policy basis for the approach adopted in the Larosa, Smith
and Pawluk cases, discussed above, is stronger than it is in the
immigration and citizenship context, where it is the privilege of citizenship,
rather than any Charter rights, which is at risk.
[42]
While
the adverse consequences of a rejection of a citizenship application can be
quite significant for the applicant and his or her family and friends, those
consequences cannot be equated with the deprivation of Charter rights,
particularly those set forth in section 7. In this regard, it must be kept in
mind that an unsuccessful applicant for citizenship can always reapply,
although, for persons such as the applicant, they would first have to wait for
the expiry of the one year period contemplated by subsection 579(2) of the Criminal
Code.
[43]
In
striking the appropriate balance between the interests of an individual
applying for citizenship and the interests of Canadian society, and in the
absence of any purpose clause or similar guidance in the Act, it is relevant to
consider the objectives set forth in subsection 3(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (IRPA). Those objectives set forth in Annex "A"
hereto.
[44]
In
my view, in determining whether a person whose charges have been stayed remains
a person who “is charged” with an offence as contemplated by paragraph
22(1)(b) of the Citizenship Act, one cannot ignore paragraph 3(1)(h) of
IRPA. In that provision, Parliament expressed a clear intent to place a
priority on safeguarding the health and safety of Canadians, and in maintaining
the security of Canadian society, in respect of immigration matters. As the
Chief Justice McLaughlin observed on behalf of the Supreme Court of Canada in Medovarski
v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539,
at para. 10:
The
objectives as expressed in the IRPA indicate an intent to prioritize
security. This objective is given effect … by emphasizing the obligation of
permanent residents to behave lawfully while in Canada …Viewed
collectively, the objectives of the IRPA and its provisions concerning
permanent residents, communicate a strong desire to treat criminals and
security threats less leniently than under the former Act.
[45]
In
my view, the objective set forth in paragraph 3(1)(h) of IRPA is essentially
the same objective that underlies paragraph 22(1)(b) of the Citizenship Act.
This objective would be better advanced by considering a person who has been
charged with the type of serious offence contemplated by that provision to be a
person who still “is charged” with that offence, notwithstanding that the
charge may have been stayed. In short, this interpretation of paragraph
22(1)(b) will protect Canadians from the risk posed by a person who, by virtue
of having been charged with one or more serious indictable offences
contemplated by that provision, demonstrably poses a potential risk to
Canadians. (Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982, at paras. 143 and 144.)
[46]
To
interpret paragraph 22(1)(b) in the manner suggested by Ms. Zhan may allow for
persons whose charges have been stayed and are subsequently recommenced within
the one year period contemplated by subsection 579(2) of the Criminal Code,
to avoid the application of that provision. This would occur if they were
granted, and then took the oath of, citizenship after the stay of proceedings
had been issued and before the proceedings were recommenced. In my view,
Parliament did not intend paragraph 22(1)(b) to be interpreted in a manner that
would permit such a perverse outcome.
[47]
In a
situation such as that which is presented by the case at bar, the fact that the
applicant for citizenship has already been charged with an offence helps to
explain why the approach to such persons contemplated by paragraph 22(1)(b)
differs in some respects from the approach to persons who are believed on
reasonable grounds to pose a security risk contemplated by section 19 of the
Act. Accordingly, I do not accept Ms. Zhan’s argument that the absence from section
22 of some of the procedural provisions that are included in section 19 supports
the view that paragraph 22(1)(b) should be interpreted as being confined to
persons who are facing charges in proceedings that have not been stayed, and
who are not in need of the same procedural safeguards as persons who are merely
believed to pose a future security risk.
[48]
In
conclusion, for all of the foregoing reasons, I find that a person who has been
charged with one or more indictable offences contemplated by paragraph 22(1)(b)
of the Act remains a person who “is charged” with such an offence,
notwithstanding that the Crown may have stayed the proceedings in respect of
those charges. It was not unreasonable for the Citizenship Judge to reach this
same conclusion. Indeed, it was entirely appropriate and correct.
B. Was
the Citizenship Judge’s reference to subsection 22(2) of the Act a reviewable
error?
[49]
The
reference to subsection 22(2) in the Citizenship Judge’s decision was clearly
an error, as Ms. Zhan has not been convicted of any offence described in that
provision. The question is whether that error is sufficiently serious or
significant to warrant setting aside the decision and remitting the matter back
to a different Citizenship Judge for reconsideration. I conclude that the error
did not rise to that level of seriousness or significance.
[50]
It
is settled law that modest or inconsequential errors which would not affect the
result in a case do not warrant the exercise of this Court’s discretion to set
aside a decision (Dubé v. Lepage, [1997] F.C.J. No. 616 (T.D.), at
paras. 45-46).
[51]
In
the case at bar, the issue is whether the reference to subsection 22(2) was
inadvertent or reflects a misunderstanding of the material evidence by the
Citizenship Judge (Petrova v. Canada (Minister of Citizenship and
Immigration), 2004 FC 506, at para. 57; Sandhu v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 134, at paras. 6 - 9).
[52]
I
am satisfied from my review of the Citizenship Judge’s decision as a whole that
he correctly understood that Ms. Zhan had simply been charged with an offence
contemplated by paragraph 22(1)(b) of the Act, rather than convicted of an
offence contemplated by subsection 22(2) of the Act.
[53]
In
short, at the outset of the Citizenship Judge’s decision letter, he stated:
“According to the evidence on file, you are presently charged with the
following indictable offences” (emphasis added). In addition, in the copy of
the completed Notice to the Minister of the Decision of the Citizenship
Judge that was attached to the Citizenship Judge’s decision, the
Citizenship Judge wrote: “Section 22. Stay of proceedings valid to 11 May 2010.
I cannot approve the application for C.C.”. Moreover, an internal note to file
made by the Citizenship Judge stated, among other things “Court Info Sheet show
[sic] 'stay of proceedings' registered 2009-05-12. This is considered a
suspension of court proceedings … As per supervisor, ‘Stays’ are valid for 1
year, thus subject to 22(1)b.”
[54]
Based
on the foregoing, I am satisfied that the Citizenship Judge properly understood
that Ms. Zhan had merely been charged with an indictable offence contemplated
by paragraph 22(1)(b), rather than convicted of an indictable offence
contemplated by subsection 22(2). Accordingly, I find that the reference to
subsection 22(2) on page 2 of his decision letter was inadvertent,
inconsequential, did not affect the outcome of his decision, and therefore did
not amount to a reviewable error.
C. Did the
Citizenship Judge fail to make his decision in accordance with natural justice
and the principles
of procedural fairness?
[55]
Ms. Zhan submits that the advice received by the Citizenship Judge
from his supervisor, to the effect that “‘Stays’ are valid for 1 year, thus
subject to 22(1)b,” constituted extrinsic evidence. As such, she asserts that
the principles of natural justice and procedural fairness required him to
provide her with an opportunity to address that evidence, and to address any
concerns that he had about her application, before he made his final decision
with respect to her citizenship application. She asserts that those concerns
included the fact that there was no indication as to whether or not the Crown
would be taking further proceedings against her and whether the Crown would be
proceeding by way of summary process or indictment.
[56]
I do not agree with these submissions.
[57]
In my view, the advice received by the Citizenship Judge from his
supervisor was internal advice, not extrinsic evidence. There was no obligation
on the Citizenship Judge to disclose to Ms. Zhan such advice or to disclose to
her CIC’s internal policy that “[a] stay of proceedings is an outstanding
charge unless a Crown agent confirms in writing that the Crown does not intend
to take further proceedings against the applicant on the charge they face”.
[58]
As to the Citizenship Judge’s observation that there was no
indication as to the Crown’s plans with respect to the proceedings in question,
this was simply a fact noted by the Citizenship Judge in his note to file. The Citizenship
Judge was under no obligation to request Ms. Zhan or the Crown to advise as to
whether the Crown would be taking further proceedings against her and whether
the Crown would be proceeding by way of summary process or indictment. Once Ms.
Zhan was asked, during her interview on July 15, 2009, to submit a copy of the
court record of her charges and the disposition of those charges, she was put
on notice that the status and potential disposition of those charges were
potentially relevant to the Citizenship Judge’s decision. Thereafter, she had
every opportunity to provide to the Citizenship Judge with whatever information
that might be relevant to these issues. Unfortunately, she did not avail
herself of the opportunity to request the Crown to advise her of its plans with
respect to her charges, as was done by the applicant in Re:
Holvenstot,
above.
[59]
In
her oral submissions, Ms. Zhan’s counsel further asserted that the reasons
provided by the Citizenship Judge for his decision were inadequate, because
they did not sufficiently explain why Ms. Zhan was considered to be still
charged with the offences in question, notwithstanding that the Crown had
stayed the proceedings against her.
[60]
I
disagree. The reason why her application was rejected was because, at the time
of the Citizenship Judge’s decision, she was a person who “is charged” with an
offence contemplated by paragraph 22(1)(b) of the Act. This fact was explicitly
articulated to her in the second paragraph of the decision. The Citizenship
Judge was under no obligation to explain to Ms. Zhan why he interpreted
paragraph 22(1)(b) to continue to apply after the proceedings on the charges in
question had been stayed. Ms. Zhan is presumed to know the law, including the
plain language of subsection 579(2) of the Criminal Code, and the
decision in Re: Holvenstot.
[61]
In
summary, I find that the Citizenship Judge did not breach the principles of
natural justice or procedural fairness by failing to: (i) provide Ms. Zhan with
an opportunity to review and address the internal advice he received from his
supervisor, (ii) request Ms. Zhan or the Crown to advise as to whether the Crown
would be taking further proceedings against her and whether the Crown would be
proceeding by way of summary process or indictment, or (iii) explain in
his decision why he interpreted paragraph 22(1)(b) to continue to apply after
the proceedings on the charges in question had been stayed.
[62]
Ms.
Zhan had every opportunity to: (i) disclose the fact that she had been charged
with offences contemplated by paragraph 22(1)(b) prior to her interview on July
15, 2009, (ii) inform herself of the legal effect of both a stay of
proceedings under that provision and any letter that she might be able to
obtain from the Crown regarding its intentions in respect of those proceedings,
and (iii) request such a letter from the Crown. Unfortunately, she failed to do
all of those things.
V. Conclusion
[63]
This
appeal is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES THAT this appeal is dismissed.
"Paul
S. Crampton"
_____________________________
Judge
ANNEX "A"
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Immigration
and Refugee Protection Act, S.C. 2001, c. 27
3. (1)
The objectives of this Act with respect to immigration are
(a) to permit Canada to pursue the maximum social, cultural and
economic benefits of immigration;
(b) to enrich and
strengthen the social and cultural fabric of Canadian society, while
respecting the federal, bilingual and multicultural character of Canada;
(b.1) to support and
assist the development of minority official languages communities in Canada;
(c) to support the
development of a strong and prosperous Canadian economy, in which the
benefits of immigration are shared across all regions of Canada;
(d) to see that
families are reunited in Canada;
(e) to promote the
successful integration of permanent residents into Canada,
while recognizing that integration involves mutual obligations for new
immigrants and Canadian society;
(f) to support, by
means of consistent standards and prompt processing, the attainment of
immigration goals established by the Government of Canada in consultation
with the provinces;
(g) to facilitate
the entry of visitors, students and temporary workers for purposes such as
trade, commerce, tourism, international understanding and cultural,
educational and scientific activities;
(h) to protect the
health and safety of Canadians and to maintain the security of Canadian
society;
(i) to promote
international justice and security by fostering respect for human rights and
by denying access to Canadian territory to persons who are criminals or
security risks; and
(j) to work in
cooperation with the provinces to secure better recognition of the foreign
credentials of permanent residents and their more rapid integration into
society.
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Loi sur
l’immigration et la protection des réfugiés, L.C.
2001, c. 27
3. (1)
En matière d’immigration, la présente loi a pour objet :
a)
de permettre au Canada de retirer de l’immigration le maximum d’avantages
sociaux, culturels et économiques;
b)
d’enrichir et de renforcer le tissu social et culturel du Canada dans le
respect de son caractère fédéral, bilingue et multiculturel;
b.1)
de favoriser le développement des collectivités de langues officielles
minoritaires au Canada;
c)
de favoriser le développement économique et la prospérité du Canada et de
faire en sorte que toutes les régions puissent bénéficier des avantages
économiques découlant de l’immigration;
d)
de veiller à la réunification des familles au Canada;
e)
de promouvoir l’intégration des résidents permanents au Canada, compte tenu
du fait que cette intégration suppose des obligations pour les nouveaux
arrivants et pour la société canadienne;
f)
d’atteindre, par la prise de normes uniformes et l’application d’un
traitement efficace, les objectifs fixés pour l’immigration par le
gouvernement fédéral après consultation des provinces;
g)
de faciliter l’entrée des visiteurs, étudiants et travailleurs temporaires
qui viennent au Canada dans le cadre d’activités commerciales, touristiques,
culturelles, éducatives, scientifiques ou autres, ou pour favoriser la bonne
entente à l’échelle internationale;
h)
de protéger la santé des Canadiens et de garantir leur sécurité;
i)
de promouvoir, à l’échelle internationale, la justice et la sécurité par le
respect des droits de la personne et l’interdiction de territoire aux
personnes qui sont des criminels ou constituent un danger pour la sécurité;
j)
de veiller, de concert avec les provinces, à aider les résidents permanents à
mieux faire reconnaître leurs titres de compétence et à s’intégrer plus
rapidement à la société.
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