Date: 20101027
Docket: T-557-10
Citation: 2010 FC 1060
Toronto, Ontario, October 27,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
KENE DON IFEPE
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985,
c. C-29 taken by way of an application, as prescribed by Rule 300(c) of this
Court, from a decision of a Citizenship Judge dated February 9, 2010 denying
the Applicant Kene Don Ifepe’s application for Canadian citizenship. For the
reasons that follow I am dismissing the appeal with costs to the Respondent
fixed in the sum of $1,500.00.
[2]
The
Applicant is a citizen of Nigeria. He emigrated to Canada where he now
resides. His wife and children are Canadian citizens. The Applicant in the
early 2000’s completed certain courses in Counselling Skills and became an
ordained minister in the Old and New Bible Holiness Church. He has
founded a church called Believers Full Gospel Vineyard, has published a
magazine, Miles and has appeared on televised religious programmes. Most of
this activity occurred before the Applicant pled guilty and was convicted of
fraud on November 3, 2005. He was sentenced to a term of imprisonment of 18
months to be served in the community. Such a sentence is commonly called
“house arrest”.
[3]
On
September 12, 2007 the Applicant applied for Canadian citizenship. That
application was not approved. The decision dated February 9, 2010 which is the
subject of this appeal stated, inter alia:
On January 26, 2010, you appeared before
me for a hearing of your application for Canadian citizenship. At that time I
reserved my decision. This letter is to inform you that I regret your
application for Canadian citizenship is not approved.
According to the evidence on file and by
your own admission, you were convicted on 3-11-2005 of the indictable offence
of attempt fraud over (as per court documents and R.C.M.P.. Since this conviction
occurred during the three year period preceding the date of your application,
you are prohibited, as provided by subsection 22(2) of the Citizenship Act,
from being granted Canadian citizenship.
This is not an appropriate case for the
exercise of discretion under Subsection 5(3) and 5(4) of the Citizenship Act
because Section 22(2) specifically provides that whenever it applies,
“Notwithstanding anything in this Act, but subject to the Criminal Records 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, other than an offence that
is designated as a contravention under the Contraventions Act.”
Pursuant to the provision of subsection
14(3) of the Citizenship Act, you are, therefore, advised that, for the above
reasons, your application for citizenship is not approved.
[4]
Applicant’s
Counsel has essentially raised three issues on this appeal:
1. Was the
Applicant, according to the record before the Citizenship Judge, convicted of
an indictable offence of fraud over $5,000.00?
2. Is the time
spent under “house arrest” deducted from the time otherwise spent in Canada by
the Applicant so as to disqualify him from having spent at least three (3)
years in Canada before his
application for citizenship?
3. Did the
Citizenship Judge fetter his discretion to be exercised under subsections 5(3)
and 5(4) of the Citizenship Act by his reliance upon section 22(2) of
that Act?
Issue #1: Was the Applicant,
according to the record before the Citizenship Judge, convicted of an
indictable offence of fraud over $5,000.00?
[5]
Subsection
22(2) of the Citizenship Act provides that a person may not be
granted Canadian citizenship if, within three years before the date of
application for citizenship, that person had been convicted of an indictable
offence:
|
Prohibition
(2) Despite anything in this Act, but subject to the Criminal
Records Act, a person shall not be granted citizenship under subsection 5(1),
(2) or (4) or 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, other than an offence that
is designated as a contravention under the Contraventions Act.
|
Interdiction
(2) Malgré les autres dispositions de la présente loi,
mais sous réserve de la Loi sur le casier judiciaire, nul ne peut recevoir la
citoyenneté au titre des paragraphes 5(1), (2) ou (4) ou 11(1) ni prêter le
serment de citoyenneté s’il a été déclaré coupable d’une infraction prévue
aux paragraphes 29(2) ou (3) ou d’un acte criminel prévu par une loi
fédérale, autre qu’une infraction qualifiée de contravention en vertu de la Loi
sur les contraventions :
a)
au cours des trois ans précédant la date de sa demande;
b)
entre la date de sa demande et celle prévue pour l’attribution de la
citoyenneté ou la prestation du serment.
|
[6]
Thus,
regardless as to the other issues before this Court, if the Applicant had been
convicted of an indictable offence at any time within three years before
September 12, 2007, his date of application for citizenship, he could not
become a Canadian citizen. He could reapply at a later date provided that he
subsequently enjoyed a clear record for the three previous years.
[7]
It
is acknowledged that on November 3, 2005, that is within three years before
September 12, 2007, the Applicant pleaded guilty to a charge of fraud and was convicted
of that charge. The question is whether the conviction was for fraud over
or under $5,000.00? If it was over, the offence was an indictable one,
if under, it was one of summary conviction. The copy of the Conditional
Sentence Order on the record states that the conviction was for: “Attempt
Fraud Under”. This, Counsel for the Respondent argues, was a slip or
error. A review of the record indicates that the Applicant pleaded guilty to a
charge (count 3) which read:
(3)
and
further that Kene IFEPE sometime between and including the 19th day
of October in the year 2004 and the 1st day of November in the year
2004 in the City Toronto, in the Toronto Region did by deceit, falsehood or
other fraudulent means attempt to defraud Scotia Bank of $307,868.82 of a value
which exceeded five thousand dollars contrary to the Criminal Code.
[8]
The
record of the Court proceedings contains the following entry:
ELECTION READ
CT.3
2 DAYS PRE SENTENCE CUSTODY
CONDITIONAL SENTENCE
18 MTHS
VICTIM SURCHARGE WAIVED
CT.1,2
W/D REQUEST CROWN
[9]
Information
records provided by the RCMP to the Citizenship Court provides the following
information:
|
DATE
AND PLACE OF DISPOSITION
DATE ET LIEU DE LA DISPOSITION
|
CHARGE - ACCUSATION
|
DISPOSITION
|
DATE, PLACE, CHARGE AND DISPOSITION
DATE, LIEU, ACCUSATION ET DISPOSITION
|
DISTRIBUTION
|
|
2005-11-03
TORONTO ONT
|
ATT
FRAUD OVER $5000
(TORONTO PS
012606-04)
|
18
MOS CONDITIONAL SENTENCE ORDER & (2 DAYS PRE-SENTENCE CUSTODY)
|
2005-11-03
UTTERING
FORGED DOCUMENT
SEC
368 CC
(2
CHGS)
-WITHDRAWN
(TORONTO PS
012606-04)
2005-11-15
ASSAULT
SEC 266 CC
-WITHDRAWN
&
PEACE BOND OF $500 FOR 1 YR
(TORONTO PS 012606-04)
|
01
COURT OF CANADIAN CITIZENSHIP ETOBICOKE, ONT
(CIVIL
2008-06-06)
|
[10]
The
record also contains a series of e-mails reflecting discussions between persons
in Immigration Canada as to whether the conviction was for fraud over or under
$5,000.00.
[11]
Applicant’s
Counsel argues that the only relevant document is the copy of the Conditional Sentence
Order which states that the conviction was for under $5,000.00.
Respondent’s Counsel argues that this was an error and, in reading the file,
including the Count to which the Applicant plead guilty, it is clear that the
conviction was for over $5,000.00.
[12]
The
Citizenship Judge in his decision wrote that the Applicant had appeared before
him at a hearing and, not only according to the evidence on the file but “by
your own admission” the Applicant was convicted of fraud over $5,000.00.
The record does not indicate such an admission however the Citizenship Judge’s
notes made during the hearing state inter alia:
“concern-applicant complies with
residence BUT applicant has a criminal conviction – indictable offence – time
to be served at house – no jail time …”
[13]
The
Applicant provided a brief affidavit in the record before me, simply attesting
to the authenticity of the copies of documents provided from the Tribunal
Record. The Applicant does not address in any way the statement in the
decision at issue that he admitted that he was convicted of an indictable offence.
[14]
Given
the state of the record it is most probable that the copy of the Conditional
Sentence Order was in error in stating that the conviction was for fraud under
$5,000.00, and that it should have stated that it was for fraud over
$5,000.00, hence an indictable offence. Further, given the statement in the
decision of the Citizenship Judge that the Applicant admitted that the offence was
an indictable offence and that the Applicant has not, in the appeal before me, challenged
that statement, I find that the decision of the Citizenship Judge to refuse the
citizenship application, on the ground of having committed an indictable
offence within three years of the date of application, is correct.
[15]
Given
that, on this ground alone the appeal must be dismissed, there is no need to
consider the other grounds raised on this appeal.
[16]
As
to costs, Counsel for the Respondent suggested as sum of $1,500.00 which I find
appropriate and will so order.
JUDGMENT
For the
reasons provided:
THIS COURT ORDERS
AND ADJUDGES that:
1. The
appeal is dismissed;
2.
The Respondent is entitled to costs to be paid by the Applicant fixed
in the sum of $1,500.00.
“Roger
T. Hughes”
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