Docket:
T-187-12
Citation: 2014 FC 40
Ottawa, Ontario, January 15, 2014
PRESENT: The Honourable Mr. Justice de Montigny
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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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CHIBANBO ABONIE CAMPBELL
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Defendant
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REASONS FOR ORDER AND ORDER
[1]
This is a motion, pursuant to s. 213 of the Federal
Courts Rules, SOR/98-106, and s. 18(1)(b) of the Citizenship Act,
RSC 1985, c C-29 (the “Citizenship Act”) for summary judgment on the
Plaintiff’s claim, issued January 18, 2012. In essence, the Minister seeks an
order declaring that the Defendant obtained his Canadian citizenship by
knowingly concealing material circumstances because he failed to advise a citizenship
official that he was charged with an indictable offence prior to obtaining his
Canadian citizenship. If the Minister is successful in the action, he will then
be entitled, pursuant to s. 10(1) of the Citizenship Act, to make a
report to the Governor in Council which, if accepted, will result in the
Defendant ceasing to be a Canadian citizen.
[2]
In this motion, the Minister asks the Court to
grant summary judgment and issue the declaration it seeks in the action, on the
basis that there is no arguable issue for trial and that the action should not
proceed further. Having carefully considered both the arguments submitted by
the parties and the record, I have come to the conclusion that the Minister’s
motion for summary judgment must be granted.
Facts
[3]
The Defendant was born in Kingstown, St. Vincent
and Grenadines, on October 4, 1982. He became a permanent resident of Canada on January 18, 2000.
[4]
The Defendant completed an adult application for
Canadian citizenship on March 20, 2003. The citizenship application, consistent
with the legislative provisions, contained a warning that Canadian citizenship
shall not be granted while the applicant is charged with an indictable offence
and that applicants must inform citizenship officials of pending charges for
indictable offences. Section 11 of the application form reads as follows:
I agree to advise
Citizenship and Immigration Canada if any information on this form changes
before I take the Oath of Citizenship. I understand the contents of this form.
I declare that the information provided is true, correct, and complete, and
that the photographs enclosed are a true likeness of me. I understand that if I
make a false declaration, or fail to disclose all information material to my
application, I could lose my Canadian citizenship and be charged under the Citizenship
Act.
I have indicated in
Section 8 whether the prohibitions apply to me.
[5]
On June 6, 2003, less than three months after
completing his citizenship application, the Defendant was charged with various
indictable offences, including trafficking in cocaine and possession of cocaine
for the purposes of trafficking, contrary to s. 5(1) of the Controlled Drugs
and Substances Act, SC 1996, c 19. The Defendant was further charged with
trafficking on October 3, 2003.
[6]
On December 11, 2003, the Defendant was advised
that his application was approved and invited to supply further information. On
March 23 2004, the Defendant took the oath of citizenship and became a Canadian
citizen, having declined to disclose the pending criminal charges against him.
The oath the Defendant signed contains a confirmation that the Defendant has no
pending charges. The Defendant was eventually convicted of trafficking in
cocaine on November 12, 2004, after having entered a guilty plea on that
charge; the other two charges against him were withdrawn at the request of the
Crown.
[7]
On August 25, 2005, the Defendant was charged
with unlawfully procuring Canadian citizenship by failing to disclose his
pending charges for cocaine trafficking. On July 3, 2007, the Defendant was
convicted of the offence with which he had been charged under the Citizenship
Act, namely that he knowingly concealed a material circumstance, by failing
to advise a Citizenship official that he was charged with an indictable offence
prior to obtaining his Canadian Citizenship, contrary to paragraph 29(2)(a) of
the Citizenship Act. He was also charged a victim surcharge of $1,000.
[8]
In his reasons released on November 20, 2007,
the judge of the Ontario Court of Justice concluded that he was satisfied
beyond a reasonable doubt that the Defendant knowingly concealed material
circumstances in order to procure Canadian citizenship. More specifically, he
stated:
On all of the
evidence, including Mr. Campbell’s own evidence, I am not left with a doubt
that Mr. Campbell knew that he was required to tell Citizenship and Immigration
Canada about his criminal charges. From the day he was charged, until the day
he swore his oath of citizenship, he knew he had an obligation to disclose this
information to the proper authorities. For whatever reason, he failed to do so.
I reject beyond a reasonable doubt the contention that Mr. Campbell was
honestly mistaken about his obligations under the Act and how to fulfill them…
Reasons for Judgment,
at p 7. Exhibit “I” to the Affidavit of Paulette Haughton, Plaintiff’s Motion
Record, at p 51.
[9]
The Defendant was given notice in accordance
with section 18 of the Citizenship Act of the Minister of Citizenship
and Immigration’s intent to revoke his citizenship. The Notice was dated
September 20, 2011. Consistent with the Defendant’s request, the matter was
then referred to the Federal Court pursuant to s. 18 of the Citizenship Act.
Issue
[10]
The only issue raised by this motion is whether
summary judgement should be granted in favour of the Plaintiff. In other words,
has the Plaintiff satisfied the Court that there is no genuine issue of fact or
law for trial?
Analysis
[11]
No person who is charged with an indictable
offence under any Act of Parliament may be granted citizenship or take the oath
of citizenship: Citizenship Act, at paragraph 22(1)(b). Indeed, the
notice to appear to take the oath of citizenship includes a warning that anyone
charged with an offence under the Criminal Code, RSC 1985, c C-46, or
other enactment is ineligible to take the oath of citizenship. The notice advises
as well that anyone in this circumstance must inform the citizenship office.
The Defendant was first notified that he met the requirements for citizenship
on December 11, 2003 and was given a notice to appear to take the oath of
citizenship on January 15, 2004. This notice, however, was returned
undeliverable and a new notice was provided, with a new oath date of March 23,
2004. The Defendant claimed that the second notice did not contain the
above-mentioned warning, but there is no evidence on the record to confirm the
allegation. There is no reason to believe that the second notice would not have
been similar to the first one and would not have contained the same warning, as
it appears to be a standard form.
[12]
Where the Governor in Council, on a report from
the Minister, is satisfied that any person has obtained, retained, renounced or
resumed citizenship under the Citizenship Act by false representation or
fraud or by knowingly concealing material circumstances, the person ceases to
be a citizen: Citizenship Act, paragraph 10(1)(a). Paragraph 18(1)(a)
and (b) of the Citizenship Act reads as follows:
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18. (1) The Minister shall not make a
report under section 10 unless the Minister has given notice of his intention
to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty
days after the day on which the notice is sent, request that the Minister
refer the case to the Court; or
(b) that person does so request and the
Court decides that the person has obtained, retained, renounced or resumed
citizenship by false representation or fraud or by knowingly concealing
material circumstances.
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18. (1) Le ministre ne peut procéder à
l’établissement du rapport mentionné à l’article 10 sans avoir auparavant
avisé l’intéressé de son intention en ce sens et sans que l’une ou l’autre
des conditions suivantes ne se soit réalisée :
a) l’intéressé n’a pas, dans les trente
jours suivant la date d’expédition de l’avis, demandé le renvoi de l’affaire
devant la Cour;
b) la Cour, saisie de l’affaire, a décidé
qu’il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle
de faits essentiels.
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[13]
Therefore, the Court does not revoke
citizenship. It only makes a declaration, which can enable the Governor in
Council to do so at some subsequent time. It is important to note that the Defendant
will be entitled to make submissions to the Governor in Council before his
citizenship is revoked, and may also seek judicial review of such a decision.
[14]
When a party brings a motion for summary
judgment, the Court must determine whether there is a genuine issue for trial
with respect to a claim or defence. The purpose of summary judgment is to allow
the Court to summarily dispense with cases which ought not to proceed to trial
because there is no genuine issue to be tried. The test is not whether a party
cannot possibly succeed at trial; rather, it is whether the case is so doubtful
that it does not deserve consideration by the trier of fact at a future trial.
As such, summary judgment is not restricted to the clearest of cases. See: ITV
Technologies Inc v WIC Television Ltd, 2001 FCA 11, at paras 4-6; Premakumaran
v Canada, 2006 FCA 213, at paras 9-11; Canada (MCI) v Schneeberger,
2003 FC 970, at para 17.
[15]
The record shows that the Defendant was charged,
that he was warned about his duty to disclose charges, that he did not do so
and proceeded to take the oath of citizenship. His defence does not dispute any
of these facts. The Defendant claims, however, that he was not aware that he
must inform Citizenship and Immigration Canada (CIC) that he had been charged
while his citizenship application was pending, and that in any event, the
police would inform CIC if it impacted his citizenship application.
[16]
The Defendant’s defence amounts to a collateral
attack on a final decision of a criminal court of competent jurisdiction in an
attempt to re-litigate an issue that has already been tried and is an abuse of
process. The facts necessary for this Court to make the order the Plaintiff
seeks have already been found on the criminal standard of proof, in the context
of the proceedings against the Defendant in the Ontario courts. The Defendant
has been convicted of the offence of knowingly concealing material
circumstances in obtaining his citizenship. Evidence of a conviction for
knowingly concealing material circumstances for the purpose of obtaining
citizenship is proof in a reference proceeding, such as the case at bar.
[17]
The Ontario Court of Justice rejected the
argument that Mr. Campbell discharged his obligation by cooperating with the
arresting police officers, and his further claim that he had discharged his
obligation by telling the police about his dealings with CIC. There is
therefore no need to say more about these submissions. As for his (somewhat
contradictory) submission that he was not aware of his obligation, it should
have been made before the Ontario Court of Justice. The Defendant had the
opportunity to challenge the charge of misrepresentation, he could have called
witnesses and he could have argued that he did not “knowingly” conceal material
circumstances. Yet, it appears from the reasons of the Ontario Court of Justice
that “Mr. Campbell did not testify to any misunderstanding as to his
obligations while his application for citizenship was pending” (Reasons, p 2;
Plaintiff’s Motion Record, p 46). This proceeding is not an appeal of the
decision of the Ontario Court of Justice; once again, the Defendant cannot
launch a collateral attack on a final decision of a provincial criminal court.
See: Canada (MCI) v Copeland, [1998] 2 FC 493; Canada (MCI) v Kawash, 2003 FCT 709, at paras 12-16.
[18]
The Defendant also complains about an alleged
delay in the bringing of revocation proceedings. He submits that the Plaintiff
became aware or ought to have become aware in August 2005 that the Defendant
may have obtained the Canadian citizenship by failing to disclose his pending
charges for cocaine trafficking, but did not issue its Notice in Respect of
Revocation of Citizenship until September 2011. The Defendant argues that the
Plaintiff’s six years delay amounts to an abuse of process that is sufficient
to stay the revocation proceedings.
[19]
Even assuming that the relevant time period for
determining delay is the period between when the government became aware of the
fraud and the issuance of the statement of claim, as opposed to the period
between the notice of revocation being sent to the applicant and the date when
the referral proceedings began as decided in a number of cases (Canada (MCI)
v Obodzinsky, 199 FTR 1, at paras 26-35; Canada (MCI) v Kawash, 2003
FCT 709, at para 16; Canada (MCI) v Copeland, [1998] 2 FC 493), I am
unable to find that the delay the Defendant complains of amounts to an abuse of
process. In Canada (MCI) v Parekh, 2010 FC 692, Justice Tremblay-Lamer
came to the conclusion that three factors have to be balanced in assessing the
reasonableness of an administrative delay: (1) the time taken compared to the
inherent time requirements of the matter; (2) the causes of the delay beyond
the inherent requirements of the matter; and (3) the impact of the delay.
[20]
The case at bar was not a complex one and did
not require further investigation. Moreover, the Minister offered no
explanation for the delay in processing the revocation. These first two factors
therefore weigh in favour of the Defendant. However, the Defendant has been
unable to show that he was prejudiced by the delay. On the contrary, he has
allegedly benefitted from the delay, however it is calculated, as he has lived
with his Canadian spouse, has fathered a child and has been gainfully employed.
Given the absence of evidence with respect to the impact of the delay on the
Defendant, the damage to the public interest in the fairness of the
administrative process should the proceeding go ahead would not exceed the harm
to the public interest in the enforcement of the legislation if the proceedings
were halted. I agree with the Minister that it would be perverse that the
Defendant be permitted to continue to enjoy that which he fraudulently
obtained, merely because he has so far enjoyed the ill-gotten citizenship for
several years.
Conclusion
[21]
For all of the foregoing reasons, the Minister’s
motion is granted, and a declaration will issue pursuant to subsection 10(1)
and paragraph 18(1)(b) of the Citizenship Act that the Defendant
obtained Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances. There will be no costs, as the Minister
provided no explanation for the delay in commencing this proceeding.
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