Date: 20090324
Docket: IMM-5373-06
Citation: 2009 FC 311
Ottawa, Ontario, March 24,
2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
ROBERT
GENE CLARK
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
At the time of his
birth, Mr. Robert Clark’s parents ran a farm in southern Manitoba, near the Canada-US border. Mr. Clark was born on
June 5, 1947 in Westhope, North Dakota, the site
of the nearest hospital. He has lived in Canada his whole life believing that he was a Canadian citizen. Persons in Mr.
Clark’s circumstances are sometimes referred to as “lost Canadians”.
[2]
In April 2006, Mr.
Clark was convicted of various drug-related and smuggling offences. He was
sentenced to 30 months in prison and to a firearms prohibition.
[3]
After his conviction, Mr.
Clark’s file came to the attention of the Canada Border Services Agency (CBSA)
which concluded that he was inadmissible to Canada on the basis of serious
criminality under the Immigration and
Refugee Protection Act, 2001, c. 27
(ss. 36(1), 44(1), (2); all statutory references are set out in Annex “A”
attached).). His file was subsequently
reviewed by the Minister’s delegate in September 2006. The delegate confirmed
the CBSA’s finding and issued a deportation order against Mr. Clark while he was
in prison. The effect of the order was to render Mr. Clark ineligible for day
parole, unescorted absences and transfer to a minimum-security institution.
[4]
Mr. Clark requested
that the deportation order be stayed. In December 2006, Justice Michael Kelen
granted the stay pending the final disposition of the underlying application
for judicial review (Clark v. Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1512). Mr. Clark was released on
day parole soon thereafter.
[5]
Mr. Clark
argues that he was treated unfairly by the Minister’s delegate. In addition, he
submits that his rights under the Canadian Charter of Rights and Freedoms,
as well as the Canadian Bill of Rights, have been infringed. I agree
that Mr. Clark was treated unfairly. It is unnecessary, therefore, for me to
deal with the other issues he has raised.
I.
The Statutory Framework
[6]
Under the Citizenship Act,
R.S.C. 1985, c. C-29, s. 3(1)(e), a person is a Canadian citizen if he
or she “was entitled” to become a citizen under s. 5(1)(b) of the former
Act, enacted in 1946: Canadian Citizenship Act, C.15. Paragraph 5(1)(b)
of the former Act stated that a person born outside of Canada is a
“natural-born Canadian citizen” if
i.
one of his parents was a Canadian
citizen, and
ii.
the birth was registered within
two years (or within an extended period authorized by the Minister).
[7]
Mr. Clark argues that these two
criteria establish, first, a condition for entitlement to Canadian citizenship
(parent’s Canadian citizenship) and, second, a procedure for claiming it
(registration). Accordingly, he submits that he “was entitled” to become a
citizen under the former Act and, therefore, under the current legislation,
should be recognized as a Canadian citizen, even though his birth was never
registered. Mr. Clark’s interpretation of the legislation was adopted in Bell
v. Canada (Minister of Employment and Immigration), 76 F.T.R. 193. However, that decision was reversed
on appeal, albeit on other grounds: 33 Imm. L.R. (2d) 305 (F.C.A.).
[8]
The Minister argues that both
criteria under the former Act must have been met before a person could be
considered a Canadian citizen under the current Act. Accordingly, Mr. Clark’s
citizenship claim is unfounded.
[9]
For present purposes, I need not
resolve the dispute between the parties on this issue. It is clear to me that
Mr. Clark raised at least a serious question regarding his citizenship.
Further, any ambiguity in the statute has now been resolved by an amendment to
the Citizenship Act. Bill C-37, due to come into force on or before
April 19, 2009, provides that a person is a Canadian citizen if he or she was
born outside Canada before February 15, 1977 to a parent who was a Canadian
citizen (s. 3(1)(g)).
[10]
The relevant provisions of the Immigration
and Refugee Protection Act (ss. 36(1), 44(1), (2)) apply only to permanent
residents or foreign nationals. A finding of inadmissibility to Canada can only
be made in relation to a person who is not a Canadian citizen. The question
that arises from these circumstances, then, is how a Minister’s delegate should
proceed in the face of a serious issue about the citizenship of the person
whose admissibility to Canada is under review.
II.
Was Mr. Clark Treated Unfairly?
[11]
Given that he found Mr. Clark
inadmissible, it follows that the delegate must have been satisfied that Mr.
Clark was not a Canadian citizen. However, he did not give Mr. Clark a chance
to establish his citizenship before making his decision. Nor did he provide any
reasons.
[12]
Decision-makers have a clear duty
to give adequate reasons for their decisions. As Justice L’Heureux-Dubé has
stated, when a decision-maker is dealing with an issue that is critical to a
person’s future, it would be
unfair to the person affected not to be told why the particular result was
reached: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43. In my
view, the issue before the Minister’s delegate in Mr. Clark’s case clearly fell
within that category of decision. It affected Mr. Clark’s eligibility for
parole, the circumstances of his incarceration and his entitlement to remain in
Canada. The officer had an obligation to give reasons for
concluding that Mr. Clark was a foreign national inadmissible to Canada.
[13]
Further, as Justice John Richard
(now Chief Justice, Federal Court of Appeal) has concluded, where there is a
serious dispute in an immigration proceeding about whether a person is a
Canadian citizen, the decision-maker should adjourn the proceeding to allow the
person to have the citizenship issue resolved: McLean v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1741, at para.
37. Here, given that the delegate could only issue a deportation order against
a non-citizen, he should have waited until a determination of Mr. Clark’s
citizenship had been made before finding him to be inadmissible.
III.
Conclusion and Disposition
[14]
The Minister’s delegate treated
Mr. Clark unfairly by failing to provide reasons for finding him inadmissible
to Canada and by doing so in advance of a decision on Mr. Clark’s citizenship.
Accordingly, I must overturn that decision. Given that there has still been no
decision on the issue of Mr. Clark’s citizenship and the matter has now been
addressed legislatively, there is no point ordering another officer to
reconsider the question of inadmissibility to Canada.
[15]
Mr. Clark has asked for costs. In
immigration matters, costs are unusual. Special circumstances must exist. Mr.
Clark argues that special circumstances exist in his case, namely:
• The Minister’s delegate took into account
Mr. Clark’s eligibility for day parole, a factor that was extraneous to the
issue the delegate had to decide;
• The effect of the delegate’s decision was
a longer period of incarceration for Mr. Clark;
• The Minister’s materials filed on the
motion for a stay falsely referred to a conviction for membership in a criminal
organization; and
• No decision was ever rendered on his
application for citizenship, filed in September 2006.
[16]
In response, the Minister notes
that the delegate was aware of the effect of his decision on Mr. Clark’s
eligibility for parole but did not take it into account in his decision. The
error in the Minister’s materials was quickly corrected, before the motion for
a stay was heard. Finally, the Minister notes that various means of rendering
this proceeding unnecessary were proposed to Mr. Clark, but none was taken up.
[17]
On balance, I am not persuaded
that special circumstances exist that would warrant an award of costs. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is allowed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex “A”
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Citizenship
Act, R.S.C.
1985, c. C-29
Persons who are citizens
3. (1) Subject to this Act, a person is a citizen
if
…
(e) the person was entitled,
immediately before February 15, 1977, to become a citizen under paragraph
5(1)(b) of the former Act.
Citizenship Act, S.C. 1946,
C. c-15 (repealed)
5. (1) A person, born after the commencement of this
Act, is a natural-born Canadian citizen:
…
(b) if he is born outside of Canada elsewhere than
on a Canadian ship and
(i) his father, or in the
case of a child born out of wedlock, his mother, at the time of that person’s
birth, is a Canadian citizen by reason of having been born in Canada or on a
Canadian ship, or having been granted a certificate of citizenship or having
been a Canadian citizen at the commencement of this Act, and
(ii) the fact of his
birth is registered at a consulate or with the Minister, within two years
after its occurrence or within such extended period as may be authorized in
special cases by the Minister, in accordance with the regulations.
Bill C-37
3. (1)
(g) the person was born
outside Canada before February 15, 1977 to a parent who was a citizen at the
time of the birth and the person did not, before the coming into force of
this paragraph, become a citizen
Immigration and Refugee
Protection Act, 2001 c. 27
Serious criminality
36. (1) A permanent
resident or a foreign national is inadmissible on grounds of serious criminality
for
(a) having
been convicted in Canada of an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years, or of an offence under an
Act of Parliament for which a term of imprisonment of more than six months
has been imposed;
(b) having
been convicted of an offence outside Canada that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a
maximum term of imprisonment of at least 10 years; or
(c)
committing an act outside Canada that is an offence in the place where it was committed
and that, if committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years.
Preparation of report
44. (1) An officer who
is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may
prepare a report setting out the relevant facts, which report shall be
transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded,
the Minister may refer the report to the Immigration Division for an
admissibility hearing, except in the case of a permanent resident who is
inadmissible solely on the grounds that they have failed to comply with the
residency obligation under section 28 and except, in the circumstances
prescribed by the regulations, in the case of a foreign national. In those
cases, the Minister may make a removal order.
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Loi sur la
citoyenneté, L.R.C.
1985, c. Ch. 29
Citoyens
3.
(1) Sous réserve des autres dispositions de la présente
loi, a qualité de citoyen toute personne :
[…]
e) habile, au 14 février 1977, à devenir citoyen aux termes de
l’alinéa 5(1)b) de l’ancienne loi.
Loi
sur la citoyenneté,
L.C. 1946, Ch. 15
5. (1) Une personne, née
après l’entrée en vigueur de la présente loi, est citoyen canadien de
naissance
[…]
b) si elle
naît hors du Canada ailleurs que sur un navire canadien, et si
i) son
père ou, dans le cas d’un enfant né hors du mariage, sa mère, à la naissance
de ladite personne, est citoyen canadien en raison de sa naissance au Canada
ou sur un navire canadien, ou pace qu’il lui a été accordé un certificat de
citoyenneté ou du fait d’avoir été citoyen canadien lors de la mise en
vigueur de la présente loi, et si
ii) le fait
de sa naissance est inscrit à un consulat ou au bureau du Ministre, dans les
deux années qui suivent cet événement ou au cours de la prorogation que le
Ministre peut autoriser, dans des cas spéciaux, en conformité des règlements.
Projet de Loi C-37
3. (1)
g) qui, née à l’étranger avant le 15
février 1977 d’un père ou d’une mère ayant qualité de citoyen au moment de la
naissance, n’est pas devenue citoyen avant l’entrée en vigueur du présent
alinéa
Loi
sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27
Grande criminalité
36. (1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
a) être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable
d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi
fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
b) être
déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au
Canada, constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans;
c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable d’un
emprisonnement maximal d’au moins dix ans.
Rapport
d’interdiction de territoire
44. (1) S’il
estime que le résident permanent ou l’étranger qui se trouve au Canada est
interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il
transmet au ministre.
Suivi
(2) S’il estime le rapport bien fondé, le ministre peut
déférer l’affaire à la Section de l’immigration pour enquête, sauf s’il
s’agit d’un résident permanent interdit de territoire pour le seul motif
qu’il n’a pas respecté l’obligation de résidence ou, dans les circonstances
visées par les règlements, d’un étranger; il peut alors prendre une mesure de
renvoi.
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