Date: 20130821
Docket: T-1688-12
Citation: 2013
FC 887
Ottawa, Ontario,
August 21, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Plaintiff
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and
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MARK BILALOV
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Defendant
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REASONS FOR ORDER
AND ORDER
[1]
In
this action, filed pursuant to paragraph 18(1)(b) of the Citizenship Act,
RSC 1985, c C-29, the Minister seeks a declaration that the Defendant obtained
his Canadian citizenship by false representation or fraud by knowingly
concealing material circumstances because “criminal convictions and probation
orders [were] in effect when [the Defendant] had a hearing with a Citizenship Judge
and when [the Defendant] took the oath to become a citizen.” If the Minister
is successful in the action, then, pursuant to subsection 10(1) of the Act,
he will be entitled to make a report to the Governor in Council which, if
accepted, will result in the Defendant ceasing to be a Canadian citizen. Given
the reason for the revocation, the Defendant may be subject to removal from Canada.
[2]
In
this motion, the Minster asks the Court to grant summary judgment and issue the
declaration it seeks in the action. For the reasons detailed below, the
Minister’s motion for summary judgment is granted without costs.
[3]
There
is no dispute between the parties regarding the circumstances leading up to Mr.
Bilalov obtaining Canadian citizenship or the facts underlying the Minister’s
claim that it was obtained by false misrepresentation or fraud. Those facts, in
addition to being largely admitted by Mr. Bilalov in his Statement of Defence,
were also set out by the Minister in a Notice to Admit, which Mr. Bilalov did
not respond to and which are therefore deemed to be admitted pursuant to Rule
256 of the Federal Courts Rules.
[4]
The
admitted facts are as follows:
i.
On October 7,
1997, the Defendant became a permanent resident of Canada;
ii.
On December
20, 2000, the Defendant applied for Canadian citizenship. On the application
form he attested that:
(i)
The
information was true, correct and complete;
(ii)
He understood
the contents of the application;
(iii)
He understood
that making a false declaration could result in the loss of Canadian
citizenship or a charge under the Citizenship Act;
iii.
On April 17,
2001, the Defendant was charged by the Toronto Police Services with theft under
$5000;
iv.
On August 3,
2001, the above charges were withdrawn;
v.
On March 15,
2002, the Defendant provided Citizenship and Immigration (“CIC”) with Court
documents showing all criminal charges made against him had been withdrawn;
vi.
On June 11,
2002, the Defendant was charged by the Toronto Police Services with assault,
uttering threats, possession of a weapon for a purpose dangerous to the public
peace and four counts of failure to comply with recognizance;
vii.
On June 19,
2002, the Defendant was convicted of assault, uttering threats, and failure to
comply with recognizance. As a result of the convictions, the Applicant [sic]
was under a probation order;
viii.
On July 15,
2002, a letter from Citizenship and Immigration was sent to the Defendant
requesting fingerprints;
ix.
On July 22,
2002, the Defendant provided his fingerprints to the Toronto Citizenship
office;
x.
On October 1,
2002, the Defendant was charged by the Toronto Police Services with possession
of a controlled substance, two counts of possession of property obtained by
crime over $5000, two counts of failure to comply with recognizance and one
count of carrying a concealed weapon;
xi.
On January
17, 2003, the Defendant attended a citizenship hearing, and signed an
attestation stating: “The statements made herein are true and correct and I
confirm that I have not been subject to immigration or criminal proceedings
since I filed my application for citizenship”;
xii.
On March 19,
2003, the Defendant was granted Canadian citizenship;
xiii.
On April 1,
2003, the Defendant attended his citizenship ceremony and signed his oath of
citizenship attesting that he had not been subject to any immigration or
criminal proceedings since filing his application for citizenship;
xiv.
On April 1,
2003, the Defendant was issued citizenship certificate, 7608116;
xv.
On May 26,
2003, the Defendant was arrested and charged with robbery, home invasion and
forcible confinement, relating to an incident that occurred on May 7, 2003;
xvi.
On January
11, 2005, the Defendant was convicted of robbery, aggravated assault, and break
and enter with theft;
xvii.
On January 3,
2006, the Defendant was charged by the Toronto Police Services with two counts
of making a false statement for citizenship contrary to paragraph 29(2)(a) of
the Citizenship Act;
xviii.
On May 19,
2006, the Defendant plead [sic] guilty to one count of making a false
statement for citizenship. The Defendant received a sentence of 30 days in
jail to be served concurrently with other criminal sentences the Defendant was
also serving at the time;
xix.
On November
17, 2010, the Defendant submitted a General Passport Application Form and the
Applicant [sic] received a General Passport; and
xx.
On December
19, 2011, the Defendant was served with the Notice in Respect of Revocation of
Citizenship.
[5]
Mr.
Bilalov’s only defence as set out in paragraph 12 of his Statement of Defence,
is “that the continuation of revocation proceedings against the Defendant in
these particular circumstances amounts to an abuse of process under the principles
of administrative law; and that a stay of proceedings is the only appropriate
remedy.” He candidly admitted at the hearing that “he will have no better
defence if there is a delay in the trial.” He relies on this Court’s decision
in Canada (Minister of Citizenship and Immigration) v Parekh, 2010 FC
692 [Parekh], wherein Justice Tremblay-Lamer stayed a revocation
proceeding on the basis that it was an abuse of process, in light of the facts
before her.
[6]
If
Mr. Bilalov is not successful in obtaining a stay, the Minister is entitled,
based on Mr. Bilalov’s admissions, to the declaration that is sought. The
basis on which Mr. Bilalov seeks a stay is the “inexplicable delay” that rests
solely with the Minister.
[7]
The
Defendant, as noted above, has a criminal record. After he applied for
citizenship, Citizenship and Immigration Canada, [CIC], the Minister’s
department, by letter dated July 15, 2002, requested the Defendant to provide
the RCMP with his fingerprints because “the Citizenship Regulations
require that we verify that the person [applying for citizenship] is free of
any prohibition from a security and criminal standpoint.” His fingerprints
were taken on July 17, 2002, and on September 12, 2002, CIC received a report
from the RCMP stating that the Defendant’s criminal charges from 1999 and 2002
had been withdrawn.
[8]
The
RCMP report fails to mention that on June 11, 2002, the Defendant was charged
by the Toronto Police Services with assault, uttering threats, possession of a
weapon for a purpose dangerous to the public peace, and four counts of failure
to comply with recognizance. Nor did it reference that the Defendant had been
convicted on June 19, 2002, of assault, uttering threats, and failure to comply
with recognizance. As a result of these convictions, the Defendant was under a
probation order.
[9]
The
Minister provided no explanation as to why the RCMP report failed to disclose
these criminal convictions and the probation order.
[10]
The
Minister has provided a “Willsay Statement of John Warner” dated February 22,
2006. Mr. Warner is an analyst within CIC. Therein it is stated that Mr.
Warner was contacted on May 27, 2003 by a CIC enforcement officer, who had been
contacted by Detective Sargeant [sic] Wilf Townkey from the Toronto
Police Holdup Squad “who was angry that Mr. Bilalov had become a Canadian
citizen, despite having numerous convictions and an outstanding warrant.” He
reports that the following day a story appeared in the Toronto Sun
expressing these police concerns.
[11]
In
response, Mr. Warner states that he attended a meeting on June 18, 2003, at
RCMP headquarters in Ottawa and it was “confirmed” by the RCMP “that Mr.
Bilalov had been convicted of criminal offences in June 2002 … and also … that
Mr. Bilalov had been convicted of another criminal offence in October 2002.”
One month after this meeting, on July 14, 2003, Mr. Warner says that he wrote
to the RCMP “requesting that Mr. Bilalov be investigated for possible charges
under Section 29 of the Citizenship Act for making false statements in order
to acquire Canadian citizenship.”
[12]
As
noted, charges were filed by the Toronto Police Services on January 3, 2006 and
on May 19, 2006, the Defendant pled guilty to one count of making a false
statement for citizenship and was sentenced to 30 days in jail to be served
concurrently with other criminal convictions he was then serving.
[13]
No
action was taken by the Minister to revoke the Defendant’s citizenship until July
29, 2011, when CIC served the Defendant with the Notice of Revocation of
Citizenship. The Minister provides no explanation for the more than five-year
delay in taking that action after the guilty plea.
[14]
The
Defendant submits, relying on Parekh, that the Minister’s delay
constitutes an abuse of process, thereby rendering the proceedings unfair. If
summary judgment is granted, he submits that it should be granted to stay the
Minister’s action.
[15]
In
reply, the Minister notes that the Defendant has filed no evidence in support
of his defence and submits that in order to find an abuse of process, the Court
must be satisfied that “the delay is clearly unacceptable and has directly
caused a significant prejudice.”
[16]
In
Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe],
para 120, the Supreme Court adopted into administrative proceedings its
jurisprudence on abuse of process in the criminal context:
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 and Evans, supra, at p. 9-68). According to
L'Heureux-Dubé J. in Power, supra, 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.
Justice Tremblay-Lamer applied that test
in the Parekh decision.
[17]
The
facts in Parekh parallel, in many respects, those at hand. The Minister
sought a declaration that Devendra and Manish Parekh had obtained Canadian
citizenship by false representation, fraud or concealment of material
circumstances. It was not disputed that they lied to obtain citizenship. In
November 2002, they both pled guilty to the offence of making false
representations in their citizenship applications and they were both fined
$700.
[18]
In
June 2003, CIC recommended to the Minister that revocation proceedings be
commenced; however, the Minister did not sign notices of the revocation of the
Parekhs' citizenships until December 2006. The Parekhs were served with the
notices in January 2007, and they then asked that the notices be referred to
the Federal Court. Unlike the present case, there was some explanation for the
delay in proceeding with the revocation. Although the recommendation to
proceed with revocation was drafted in June 2003, it was not presented to the
then Minister before she was replaced in December 2004. In the following two-year
period “there were several changes of the Minister, each accompanied by shifts
in departmental priorities.”
[19]
In
the period between conviction (November 2002) and receipt of the notice of
revocation (December 2006), the Parekhs, in June 2003, filed an application for
permanent residence on humanitarian and compassionate grounds on behalf of
their US born daughter, with support of their sponsorship application. That
H&C application was outstanding when the matter came on for hearing. There
was also evidence that the Parekhs had applied for Canadian passports in this
interim period. Their passport applications were denied; however, they were
issued time-limited passports in December 2003.
[20]
The
Parekhs took the position that the Minister's proceeding should be stayed as an
abuse of process. They claimed they expected to have their citizenships
revoked in 2002, so the delay caused them significant prejudice because they
were not able to obtain regular passports to enable them to visit family
members abroad or to pursue employment opportunities, and they were not able to
have their application to sponsor their US born daughter processed. Further,
they submitted that they had been denied the benefits of citizenship for years
and that it would be unfair, if they lost their citizenships now, to have to
wait five years to apply for citizenship again.
[21]
Justice
Tremblay-Lamer stayed the Minister’s action after examining the three main
factors to be balanced in assessing the reasonableness of a delay: (1) the time
taken compared to the inherent time requirements of the matter, (2) the causes
of delay beyond the inherent requirements of the matter, and (3) the impact of
the delay.
[22]
I
adopt the analysis and conclusion of Justice Temblay-Lamer at paragraphs 30 to
35 of Parekh as to the “timeliness” of the Minister’s actions because
the facts here parallel those she considered. There, the delay of five years
was found to be neither normal nor due to any complexities of the case. Here,
as there, the facts required to support a revocation of citizenship had been
admitted by the Defendant when he pled guilty to the crime of making a false
statement for citizenship. This was not a complex case, nor one requiring
further investigation. The first factor weighs in favour of the Defendant’s
request for a stay.
[23]
Unlike
Parekh, the Minister offered no explanation for the delay in processing
the revocation. Given that CIC alerted the RCMP to the possibility that the
Defendant had obtained citizenship by making a false statement, and its
knowledge of the charge and conviction, it is shocking that so much time passed
before a notice of revocation was provided to the Defendant. It is very disturbing
that the Minister offered no explanation to the Court for why this delay
occurred. This factor too favours the Defendant’s request for a stay.
[24]
The
third and final factor is the impact of the delay. In order to be considered
an abuse of process, there must be evidence that the delay “directly caused
a significant prejudice to amount to an abuse of process. It must be a
delay that would, in the circumstances of the case, bring the human rights
system into disrepute:” Blencoe at para 115 [emphasis added]. There
was testimony from the Defendants in Parekh “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.” Here, the Defendant has offered no evidence of the impact
the delay has had on him.
[25]
In
his Statement of Defence, the Defendant pleads that in the interim period
between the Minister becoming aware of the guilty plea and the delivery of the
notice of revocation, he “entered into a long term marital relationship with a
refugee claimant in Canada, fathered a child to their marriage, and that the
Notice of Commencement of this proceeding in December 2011 caused his wife to
run away taking their child.” This allegation, if true, might well support a
finding that there has been a serious impact on the Defendant as a result of the
Minister’s delay.
[26]
In
the memorandum filed by the Defendant in response to this motion, the Defendant
“repeats and relies upon the Statement of Fact and Law contained in the
Defendant’s Statement of Defence dated October 16, 2012.” However, Rule 214 of
the Federal Courts Rules specifically provides that this is
insufficient:
A
response to a motion for summary judgment shall not rely on what might be
adduced at a later stage in the proceedings. It must set out specific facts
and adduce evidence showing that there is a genuine issue for trial. [emphasis
added]
[27]
Accordingly,
in this case, although there is an allegation of prejudice to the Defendant in
his Statement of Defence, there is no evidence before the Court of any impact
on the Defendant arising from the delay in launching the revocation
proceedings.
[28]
In
this case, given the absence of evidence of impact of the delay on the
Defendant, I am unable to conclude 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." Accordingly, I am unable to
agree with the Defendant, despite the extraordinary and totally unexplained
delay by the Minister, that this action ought to be stayed. The Minister’s
motion is granted, but because of the Minister’s totally unexplained delay in
commencing the proceeding, without costs.
ORDER
THIS COURT
ORDERS that:
1. The Minister’s motion for
summary judgment is granted, without costs; and
2. The
Court declares that Mark Bilalov obtained Canadian citizenship by false
representation or fraud by knowingly concealing material circumstances.
"Russel W. Zinn"
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