Docket:
T-929-12
Citation:
2014 FC 523
Ottawa, Ontario, May 30, 2014
PRESENT: The Honourable Madam Justice Kane
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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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NEDJO SAVIC
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Defendant
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JUDGMENT AND REASONS
[1]
The Minister seeks a declaration pursuant to
paragraph 18(1)(b) of the Citizenship Act, RSC 1985, c C-29 (the “Act”)
that Nedjo Savic (the “defendant”) obtained his Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances
because he provided false answers and concealed information on his application
for permanent residence which led to his permanent resident status and
ultimately his citizenship.
[2]
If the Minister is successful in the action, the
Minister will be entitled to make a report to the Governor in Council pursuant
to section 10 of the Act, which, if accepted, will result in the defendant
ceasing to be a Canadian citizen. The defendant could then be subject to
removal from Canada.
[3]
The Minister makes this motion pursuant to
section 213 of the Federal Courts Rules, SOR/98-106, asking the Court to
grant summary judgment and issue the declaration. To be successful on the
motion for summary judgment, the Minister must satisfy the Court that there is
no genuine issue of fact or law for trial. The defendant submits that several
issues are raised which require a trial; the most significant issue is whether
the defendant’s actions in providing false information (i.e. false
representations, and/or knowingly concealing material circumstances) requires
that the defendant had the intention to mislead the decision maker.
[4]
For the reasons below, the Minister’s motion for
summary judgment is granted.
Citizenship
revocation in general
[5]
This Court does not revoke citizenship; rather,
it makes a declaration which may lead to the Governor in Council deciding to do
so. If such a declaration is made, the defendant will have the opportunity to
make submissions to the Governor in Council before his citizenship is revoked.
Where the Governor in Council 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, that person ceases to be a citizen. The defendant may seek
judicial review of such a decision of the Governor in Council.
[6]
In Canada (Minister of Citizenship and
Immigration) v Rogan, 2011 FC 1007, [2011] FCJ No 1221 [Rogan],
Justice Mactavish explained the nature of revocation proceedings, at paras 13 –
16:
[13] A reference by the Minister under
section 18(1)(b) of the Citizenship Act, R.S., 1985, c. C 29 (the “Citizenship
Act, 1985”) is not an action in the conventional sense of the word. Rather,
it is “essentially an investigative proceeding used to collect evidence of
facts surrounding the acquisition of citizenship, so as to determine whether it
was obtained by fraudulent means”: Canada (Minister of Citizenship and
Immigration) v. Obodzinsky, 2002 FCA 518, [2002] F.C.J. No. 1800, at para.
15 [Obodzinsky, (FCA)].
[14] The task for the Court is to make
factual findings as to whether Mr. Rogan obtained his Canadian citizenship by
false representation or fraud or by knowingly concealing material
circumstances. Findings made by this Court under section 18(1)(b) of the Citizenship
Act, 1985 are final, and cannot be appealed.
[15] Although these reasons follow a
hearing at which a great deal of evidence was adduced, the Court’s factual
findings are not determinative of any legal rights. That is, this decision does
not have the effect of revoking Mr. Rogan’s Canadian citizenship: Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R.
391, [1997] S.C.J. No. 82, at para. 52, citing Canada (Secretary of State)
v. Luitjens, [1992] F.C.J. No. 319, 142 N.R. 173 at 175 [Luitjens,
(FCA)].
[16] These findings may, however, form
the basis of a report by the Minister to the Governor in Council requesting the
revocation of Mr. Rogan’s citizenship. The ultimate decision with respect to
the revocation of citizenship rests with the Governor in Council, which is the
sole authority empowered to revoke citizenship. A decision by the Governor in
Council to revoke an individual’s citizenship may be judicially reviewed: Canada (Minister of Citizenship and Immigration) v. Furman, 2006 FC 993,
[2006] F.C.J. No. 1248, at para. 15.
[7]
Although the defendant in this case submits that
the findings of the Court are invariably accepted by the Governor in Council
and will lead to revocation, the defendant will have an opportunity to make
submissions to the Governor in Council. The Governor in Council is not
precluded from considering the current circumstances of the defendant which may
be relevant to the exercise of discretion whether to revoke his citizenship,
but which do not change the facts as established by the plaintiff with respect
to section 10 of the Act.
[8]
As noted by Justice Kelen in Canada (Minister of Citizenship and Immigration) v Dinaburgsky, 2006 FC 1161,
[2006] FCJ No 1460:
58 Canada does not allow persons
convicted of serious criminal offences to become permanent residents. It is not
the role of the Court to condone or forgive persons who misrepresent or conceal
material facts about their past serious criminality. That is a decision for
only the Minister of Citizenship and Immigration and the Governor in Council.
Nor is it the Court's role to determine whether, as a matter of policy, it is
appropriate to render stateless citizens of Canada who choose not to disclose
criminal convictions pre-dating their admission to Canada. That is a decision
left to Parliament acting through the Governor in Council.
[9]
Justice Kelen’s point is equally applicable in
the present case; it is not the role of this Court to determine if the defendant,
now elderly and in poor health, should suffer the consequences of revocation of
his citizenship. That is the role of the Governor in Council. The Court’s role
is focused on determining whether the declaration pursuant to section 10 of the
Act should be made.
Principles
re summary judgment
[10]
The legal principles with respect to summary
judgments, both generally (see Granville Shipping Co v Pegasus Lines Ltd SA,
[1996] 2 FC 853 at para 8 [Granville Shipping] and MacNeil Estate v
Canada (Indian and Northern Affairs Department), 2004 FCA 50), and in the
specific context of proceedings undertaken to determine whether citizenship was
obtained by false representation or by fraud or by knowingly concealing
material circumstances, are not in dispute.
[11]
As recently noted by Justice de Montigny in Canada (Minister of Citizenship and Immigration) v Campbell, 2014 FC 40, [2014] FCJ No
30:
[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.
[12]
In Canada (Minister of Citizenship and
Immigration) v Schneeberger, 2003 FC 970, [2003] FCJ No 1252, Justice
Dawson (as she then was) noted:
25 The standard of proof to be
applied in a reference under the Act is the civil standard of proof on a
balance of probabilities. However, the evidence must be scrutinized with
greater care because of the seriousness of the allegations and the severe
consequences of revocation of citizenship (see Canada (Minister of
Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37 (T.D.) at
paragraph 10).
[13]
In Canada (Minister of Citizenship and
Immigration) v Laroche, 2008 FC 528, [2008] FCJ No 676 [Laroche ],
Justice Mactavish granted summary judgment declaring that the defendant had
obtained his citizenship by false representation or fraud or by knowingly
concealing material circumstances in contravention of subsection 10 of the Act,
and provided an overview of the relevant principles from the jurisprudence:
[6] As the Supreme Court of Canada
recently observed in Canada (Attorney General) v. Lameman, 2008 SCC 14,
at paragraph 10, the summary judgment process serves an important purpose in
the civil litigation system, as it prevents claims or defences that have no
chance of success from proceeding to trial. That said, while being able to
weed out such cases at an early stage can save scarce judicial resources,
justice requires that claims involving real issues be allowed to proceed to
trial.
[…]
[8] It has been suggested that there
is some ambiguity between Rule 216(1), which states that matters should proceed
to trial where there is a genuine issue to be decided, and Rule 216(3), which
entitles a motions judge to decide that issue, if the necessary facts can be
found.
[9] According to the Federal Court of
Appeal, this apparent ambiguity should not result in motions for summary
judgment becoming summary trials on the basis of affidavit evidence: see Trojan
Technologies Inc. v. Suntec Environmental Inc. [2004] F.C.J. No. 636, 2004
FCA 140, at ¶19.
[10] A number of other principles can
be gleaned from the jurisprudence. One such principle is that where there is
an issue of credibility involved, the case should not be decided on summary
judgment under Rule 216(3) but rather should go to trial because the parties
should be cross-examined before the trial judge: MacNeil Estate v. Canada
(Indian and Northern Affairs Department) [2004] F.C.J. No. 201, 2004 FCA
50, at ¶ 32.
[11] Judges hearing motions for summary
judgment can only make findings of fact or law where the relevant evidence is
available on the record, and does not involve a serious question of fact or law
which turns on the drawing of inferences: see Apotex Inc. v. Merck & Co.,
[2002] F.C.J. No. 811, 2002 FCA 210.
[12] Also relevant to this matter is
Rule 215, which provides that:
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215. A response to a motion for summary judgment shall not rest
merely on allegations or denials of the pleadings of the moving party, but
must set out specific facts showing that there is a genuine issue for trial.
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215. La réponse à une requête en jugement
sommaire ne peut être fondée uniquement sur les allégations ou les
dénégations contenues dans les actes de procédure déposés par le requérant.
Elle doit plutôt énoncer les faits précis démontrant l’existence d’une
véritable question litigieuse.
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[13] That is,
a party responding to a motion for summary judgment cannot simply rely on
allegations or denials in its pleadings. Instead, the responding party must
provide evidence, through affidavits or by other means, of specific facts
demonstrating that there is a genuine issue for trial: see Kirkbi AG v.
Ritvik Holdings Inc. [1998] F.C.J. No. 912, at ¶18.
[14] According to the Federal Court of
Appeal in the MacNeil Estate case previously cited, parties responding
to a motion for summary judgment do not have the burden of proving all
of the facts in their case; rather, they have only an evidentiary burden to put
forward evidence showing that there is a genuine issue for trial: at ¶25.
[15] Although the burden lies with the
moving party to establish that there is no genuine issue to be tried, Rule 215
does, however, require that the party responding to the motion for summary
judgment “put his best foot forward”. To do this, a responding party must set
out facts that show that there is a genuine issue for trial: see MacNeil
Estate, at ¶37.
[16] This requirement has also been
described as necessitating that a responding party “lead trump or risk losing”:
see Kirkbi AG, above, at ¶18, quoting Horton v. Tim Donut Ltd.
(1997), 75 C.P.R. (3d) 451 at 463 (Ont. Ct. (Gen.Div.)), aff'd (1997), 75
C.P.R. (3d) 467 (Ont. C.A.).
[17] Ultimately, the test is not
whether a plaintiff cannot succeed at trial, but whether the case is so
doubtful that it does not deserve consideration by the trier of fact at a
future trial: see Ulextra Inc. v. Pronto Luce Inc. [2004] F.C.J. No.
722, 2004 FC 590.
[18] In making this determination, a
motions judge must proceed with care, as the effect of the granting of summary
judgment will be to preclude a party from presenting any evidence at trial with
respect to the issue in dispute. In other words, the unsuccessful responding
party will lose its “day in court”: see Apotex Inc. v. Merck & Co., 248 F.T.R. 82, at ¶12, aff’d 2004 FCA 298.
[14]
The Federal Courts Rules regarding
summary judgment were amended in 2009 and section 215, referred to above, is
now section 214, with some minor changes to the wording, but the principles set
out above continue to apply.
[15]
The Supreme Court of Canada’s recent decision in
Hryniak v Mauldin, 2014 SCC 7, [2014] SCJ No 7, which interpreted
Ontario’s recently amended summary judgment rules, appears to encourage resort
to summary judgment in appropriate cases to facilitate access to justice and to
resolve the litigation. However, the consequences of citizenship revocations
require the Court to carefully scrutinize the evidence and I continue to be
guided by the principles set out above.
[16]
With all of these principles in mind, the merits
of the motion have been considered.
The
Defendant’s Immigration History
[17]
On September 28, 1995, the defendant shot his
neighbour in Bosnia and Herzegovina with a firearm. The defendant maintains
that he shot in self-defence in the context of a property dispute. He was
arrested, charged with attempted homicide, detained in custody for two and a
half months and then released pending trial. He was tried and convicted in
2000. His conviction was set aside on appeal in 2002 and a new trial was
ordered. That trial has not taken place as the defendant is not present in Bosnia and Herzegovina, however, the defendant remains subject to an international arrest
warrant.
[18]
After the shooting incident and while awaiting his
trial, on March 8, 1998, the defendant applied for permanent residence [“PR”]
in Canada. His wife’s great nephew assisted him with the application form,
which required him to answer several questions. The defendant answered “no” to
Question 20 which asked whether he had “committed a criminal offence in any
country”. He also answered questions on a supplementary form indicating that he
had no problems with the police and that he had not had any contact with any
state security service. The defendant attested to the truthfulness,
completeness and accuracy of his answers to the questions on the supplementary
form. He declared that he asked for and obtained an explanation for every point
on the form that was not clear to him. He also declared that he fully accepted
responsibility for the statements made on his PR application.
[19]
Between 1998 and 2000, the defendant traveled to
and from Canada to Bosnia and Herzegovina without incident at least twice and
was able to renew his passport in 1998.
[20]
The defendant obtained permanent resident status
in Canada on January 19, 1999, after the required police and security
clearances administered by Citizenship and Immigration Canada [CIC] were
completed.
[21]
The defendant applied for citizenship on March
10, 2003. On his application, he attested that he understood the contents of
the application and that false declarations could result in the loss of
Canadian citizenship or a charge under the Act.
The
revocation proceedings against the defendant
[22]
On February 24, 2012, the Minister of
Citizenship and Immigration (the “Minister”), issued a Notice in Respect of
Revocation of Citizenship which informed the defendant that a report would be
made to the Governor in Council under section 10 of the Act. On March
21, 2012, the defendant requested that the case be referred to this Court,
pursuant to section 18 of the Act. On May 11, 2012, the Minister
commenced proceedings in this Court and issued a Statement of Claim which
alleges that the defendant obtained Canadian citizenship by false representation
or by fraud or by knowingly concealing material circumstances concerning his
criminal history. After cross-examinations by the parties, the Minister brought
this motion for summary judgment pursuant to Rule 215(1) of the Federal
Courts Rules.
[23]
I note that by Order dated November 6, 2012, the
defendant’s son, Blagoje Savic, was appointed as litigation guardian for the
defendant because the defendant now suffers from Parkinson’s disease and
dementia. The litigation guardian gathered information from his father, the
great-nephew who assisted his father complete his application, and from other
family members. The litigation guardian participated in the cross examinations
and provided evidence.
Relevant
statutory provisions
[24]
Sections 10 and 18 of the Citizenship Act
are set out in Annex A.
Issues
[25]
As noted above, the key issue is whether summary
judgment should be granted.
[26]
The plaintiff now submits that the facts are
undisputed and support the order for summary judgment: the defendant was
charged with attempted murder and was detained by police in 1995; he declared
on his application for permanent residence that he had never committed a crime,
that he never had any contact with state security services, and that he never
had problems with the police; and based on this information he became a
permanent resident in 1999 and a Canadian citizen in 2003. The plaintiff also
relies on admissions made at discovery including that the defendant knew he was
facing charges for attempted homicide at the time of his application and should
not have answered the questions as he did.
[27]
The defendant submits that there is insufficient
evidence to establish the necessary facts and raises nine issues that he
submits are genuine issues requiring that a trial be held; the most significant
issue being whether an intention to mislead the decision maker is required to
establish that the defendant obtained his Canadian citizenship by false
representation or by fraud or by knowingly concealing material circumstances
and whether the defendant had such an intention.
Is intent
to mislead the decision maker required pursuant to section 10 of the
Citizenship Act?
The
plaintiff’s position
[28]
The Minister submits that he has established, on
a balance of probabilities, that the defendant obtained his Canadian
citizenship by false misrepresentations or by fraud or by knowingly concealing
material circumstances on his permanent resident application and/or citizenship
application.
[29]
The Minister submits that a misrepresentation of
a material fact includes an untruth, the withholding of truthful information or
a misleading answer that has the effect of foreclosing or averting further
inquiries (Minister of Manpower and Immigration v Brooks, [1974] S.C.R. 850
at 873 [Brooks]; Canada (Minister of Citizenship and Immigration) v
Odynsky, 2001 FCT 138 at paras 156-159, 177, [2001] FCJ No 286 [Odynsky])
and that the defendant’s answers to the relevant questions had that effect.
[30]
The Minister further submits that the conduct of
making “false representations” included in subsection 10 (2) does not require
an intention to mislead the decision-maker as established by the Supreme Court
of Canada in Brooks at paras 138-140. The Minister submits that Brooks
has been relied on in citizenship proceedings, although Brooks was not a
citizenship proceeding.
[31]
The Minister argues that, in any event, the
wording of section 10 is clear; a declaration can be issued where it is found
that a person obtained his permanent resident status by false representation or
by fraud or by knowingly concealing material circumstances and the defendant’s
conduct includes both false representation and knowingly concealing material
circumstances.
[32]
The Minister further clarifies his position; the
defendant knowingly concealed material circumstances either intentionally or
through wilful blindness. In addition, the Minister submits that the defendant
made false representations, which does not require an intention to mislead the
decision maker. However, if such an intention is required, it has been established.
Post hearing
submissions of the plaintiff
[33]
At the hearing, the Minister advanced a new
argument to support his position that no intention to mislead is required under
section 10 with respect to false representation. The Minister noted that the
jurisprudence regarding section 40 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [“IRPA”] which addresses the consequences of
misrepresentation for permanent residents may be instructive.
[34]
I asked the plaintiff to provide more clarity
regarding this new line of argument in brief post hearing submissions. The
defendant was also provided with an opportunity to respond in writing to the
plaintiff’s submissions regarding section 40. The defendant did so and, in
addition, reiterated many of the arguments made at the hearing and in the
previous memos. The defendant also elaborated on the Governor in Council
process regarding revocation of citizenship.
[35]
My consideration of the post hearing submissions
has been limited to the alternative argument regarding section 40 of IRPA.
[36]
These submissions are summarized below and have
been carefully considered.
[37]
The Minister submits that while there is no need
to go beyond the clear wording of section 10 of the Act and the relevant
jurisprudence to conclude that an intention to mislead is not required to
establish that a person made a false representation, the jurisprudence
regarding section 40 of IRPA bolsters this position.
[38]
The Minister reiterates that his argument that
intention is not required if a person makes a false representation is an
alternative argument. The Minister’s primary position is that the defendant
knowingly concealed material circumstances – either intentionally or by willful
blindness, which is amply supported by the evidence. The Minister also submits
that false representations were made and, if an intention to mislead is
required, such an intention is apparent.
[39]
The relevant provision of IRPA is paragraph
40(1)(a):
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40. (1) A permanent resident or a foreign national is inadmissible
for misrepresentation
(a) for directly or indirectly misrepresenting or
withholding material facts relating to a relevant matter that induces or
could induce an error in the administration of this Act;
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40. (1) Emportent interdiction de territoire
pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire une présentation erronée
sur un fait important quant à un objet pertinent, ou une réticence sur ce
fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de
la présente loi;
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[40]
The Minister submits that the jurisprudence
regarding section 40 has established that a willfulness or intention to
misrepresent or to withhold material facts is not required. However, there may
be an exception for honest and reasonable mistakes which would only apply in “truly exceptional circumstances” (Goudarzi v Canada (Minister of Citizenship and
Immigration), 2012 FC 425, [2012] FCJ No 474).
[41]
The Minister submits that importing an element
of intention to mislead for false representation under subsection 10 (2) of the
Act is absurd as this suggests that the law should treat people
differently depending on when their false representation is discovered. If the
person is a permanent resident, intention to mislead would not be required, but
if the person has already acquired citizenship, the Act would apply and
an intention to mislead by making the false representation would have to be
established.
[42]
The rare exception of honest and reasonable
mistake which may be available under subsection 40 (1) of IRPA is not available
under subsection 10 (2) of the Act. However, the Minister submits that
citizens involved in revocation proceedings could make submissions on an issue
of innocent mistake at the subsequent Governor in Council process.
[43]
The Minister further submits that even if an
exception for honest and reasonable mistake were available under subsection
10(2), it would not assist the defendant. If he honestly believed that he did
not commit a criminal offence, did not have contact with a state security agency
or did not have a problem with the police, despite shooting his neighbour,
being arrested, charged with attempted murder and detained for two months, his
belief could not be reasonable.
The
defendant’s position
[44]
The defendant submits that in order to find that
he knowingly concealed material circumstances, it must be found, based on the
evidence presented, that he intentionally and consciously misled the
decision-maker (Odynsky, above at para 159; Rogan, above, at para
31. The defendant submits that there was no such intent and that his answers to
the questions on his permanent resident form and the supplemental form were
justified.
[45]
The defendant argues that none of the
jurisprudence supports the position that the Minister is not required to
demonstrate a fraudulent intent or intent to mislead the decision maker where
false representations are made. The defendant argues that the Minister is
asking the Court to give a novel and illogical reading to section 10 (2) of the
Act since the other conduct - fraud and knowingly concealing - does
require such intent.
[46]
The defendant submits that the Minister’s
reliance on Brooks to argue that making false representations does not
require an intention to mislead is misplaced. The case law regarding
citizenship revocation that has relied on Brooks has focused on the
issue of materiality, not intent.
[47]
The defendant further submits that citizenship
has not previously been revoked on the exclusive basis of a false
representation.
The
defendant’s Post hearing Submissions
[48]
The defendant rejects the submission that the
jurisprudence under section 40 of IRPA regarding misrepresentation is
instructive. The defendant notes that the provisions differ and that procedural
safeguards are more robust for permanent residents; for example, permanent
residents found inadmissible may appeal to the Immigration Appeal Division and
make oral submissions. However, no appeal is available for a decision made
pursuant to section 10 of the Citizenship Act. The possibility that the
defendant would be able to raise an honest mistake at the later stage in
submissions to the Governor in Council is not an alternative to an appeal or to
an inability to raise an honest mistake before the Court.
[49]
In addition, the defendant disputes the
Minister’s argument that subsection 10 (1) does not permit a person to raise an
honest mistake and submits that the jurisprudence has recognized that people
should not be punished for events outside of their knowledge and control. The
defendant referred to Schneeberger, above where Justice Dawson noted:
[26] More must be established than a
technical transgression of the Act. Innocent misrepresentations are not to
result in the revocation of citizenship. See: Canada (Minister of
Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155 (T.D.).
An
Intention to mislead is an element of section 10
[50]
It is important to bear in mind that section 10
does not create a criminal offence and does not engage a criminal standard of
proof. The conduct set out in section 10 that is relied on to establish that
the “person has obtained, retained, renounced or
resumed citizenship under this Act by false representation or fraud or
by knowingly concealing material circumstances”
must be established on a balance of probabilities, not on the standard of proof
beyond a reasonable doubt.
[51]
The purpose of the provision is to ensure that
applicants do not benefit by obtaining permanent resident status and
citizenship as a result of failing to provide essential information or from
providing false information. The information provided is relied on by the
decision maker. Applicants have a duty to provide the information requested and
to be truthful and ought to know that the information will be relied upon and
may foreclose further lines of inquiry.
[52]
The plaintiff relies on Brooks to support
his position that intention is not an element of making a false representation.
I am not persuaded that Brooks has established this proposition for the Citizenship
Act.
[53]
In Brooks at 864-65, the Supreme Court of
Canada considered section 19 of the Immigration Act, RSC 1952, c 325
regarding whether the defendant should be deported. That provision, in a
different statute and differently worded, did not specify an element of
intention.
[54]
Justice Laskin (as he then was), speaking for
the Court, noted at page 865:
An answer may
be both false and misleading but the statute does not demand this combination.
It may be the one or the other and still fall within the prohibition. Again,
since criminal punishment is not the object of the enforcement of immigration
and deportation policies by means of special inquiries, I cannot be
persuaded that intentional or wilful deception should be read in as a
prerequisite. It was noted by counsel, as well as by the Board, that mens
rea is made a condition of culpability under s. 50(b) and (f) which sets out
criminal offences, and hence is of a different order than what is prescribed by
ss. 19 and 26.
[emphasis
added]
[55]
The Court found that providing false or
misleading information does not require mens rea or an intention to
mislead to be caught by the Immigration Act (as it provided at that
time).
[56]
Although subsequent jurisprudence has cited Brooks
in the context of citizenship revocation, I have not been referred to any
jurisprudence that specifically relied on Brooks with respect to the
element of intention required pursuant to section 10 of the Citizenship Act.
[57]
The jurisprudence regarding citizenship
revocation has established that inadvertent omission of information that is not
material will not be caught by section 10, but also that wilful blindness to
the requirement to disclose information will not be condoned.
[58]
The defendant relied on Canada (Minister of Multiculturalism and Citizenship) v Minhas, [1993] FCJ No
712, 21 Imm LR (2d) 31 [Minhas] and Schneeberger, above, to
assert that section 10 does not preclude the defendant raising an honest
mistake.
[59]
In Minhas at paras 8-10, Justice Jerome
considered subsection 10(1) of the Act regarding false representations
and concluded that some evidence of an intention to mislead is required:
8 In
order to succeed, the Minister must do more than merely demonstrate that the
respondent has committed a technical transgression of the Act. The words used
in subsection 10(1) do not impute an offence requiring the full criminal
standard of proof "beyond a reasonable doubt", but rather have the
effect of saving innocent misrepresentations from the severe penalty of
revocation of citizenship. An innocent statement or representation, although
false and misleading, is not sufficient to invoke or justify such a penalty.
There is a further element of proof required, relating to the respondent's
state of mind, and the onus of that proof rests with the Minister. What is
required, therefore, is some evidence that the respondent misrepresented
pertinent facts with the intention to deceive and to obtain his citizenship on
the basis of those false representations.
[my emphasis]
[60]
In that case Justice Jerome was not satisfied
that Minhas had the intention to make a false representation or to knowingly
conceal material circumstances in order to obtain his citizenship.
[61]
In Schneeberger, Justice Dawson noted:
[26] More must be established than a
technical transgression of the Act. Innocent misrepresentations are not to
result in the revocation of citizenship. See: Canada (Minister of
Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155 (T.D.).
[62]
In that case, Justice Dawson (as she then was)
found that the conduct constituted both a false representation and knowing concealment
and was clearly intentional:
48 For these reasons, I am satisfied,
on a balance of probabilities, that the defendant provided a false blood sample
to the R.C.M.P. This constituted the making of a false representation to, and
the knowing concealment of a material circumstance from, the R.C.M.P. The false
representation was that the blood sample was that of the defendant. The
defendant knowingly concealed the material circumstance that it was someone
else's blood contained in a rubber tube inserted in his arm under his skin.
Through the making of this false representation and/or the knowing concealment
of a material circumstance, the defendant circumvented any further police
inquiry which would likely have led to criminal charges. This, in turn, would
have rendered him ineligible for citizenship. Through the making of the false
representation and/or the knowing concealment he was able to tell the
Citizenship Judge that he had not been charged with an offence.
[63]
In Canada (Minister of Citizenship and
Immigration) v Phan, 2003 FC 1194, 240 FTR 239 [Phan], Justice
Gibson referred to Schneeberger and other jurisprudence that had
referred to Minhas and expressed the need for caution regarding
“innocent” misrepresentations:
[33] I agree with the foregoing concern
about the application of Minhas. I am concerned that the principle drawn
from that decision by Justice Dawson that "innocent representations are
not to result in the revocation of citizenship" is overly broad. I am
satisfied that misrepresentations put forward as "innocent" must be
carefully examined. "Willfull blindness", when practised by an
applicant for Canadian citizenship in the pursuit of his or her application, is
not to be condoned. The applicant is seeking a significant privilege. In those
circumstances, he or she, when faced with a situation of doubt, should
invariably err on the side of full disclosure to a citizenship judge or
citizenship official.
[64]
In Odynsky, above at para 159, Justice
MacKay addressed the meaning of “knowingly conceal” noting that the person need
not know that the information concealed is material to the decision, but the
act of concealing the information must be done with the intent to mislead.
[65]
In Rogan, above Justice Mactavish
addressed the requirements of section 10 of the Act and summarized the
jurisprudence:
[32] In order to find that someone
“knowingly conceal[ed] material circumstances” within the meaning of section 10
of the Citizenship Act, 1985, “the Court must find on evidence, and/or
reasonable inference from the evidence, that the person concerned concealed
circumstances material to the decision, whether he knew or did not know that
they were material, with the intent of misleading the decision-maker”: Odynsky,
above, at para. 159. See also Schneeberger, above, at para. 20.
[33] “A misrepresentation of a material
fact includes an untruth, the withholding of truthful information, or a
misleading answer which has the effect of foreclosing or averting further
inquiries”: Schneeberger, at para. 22, citing Brooks. This is so
even if the answer to those inquiries might not turn up any independent ground
of deportation: Brooks, above, at 873.
[34] In assessing the materiality of
the information concealed, regard must be had to the significance of the
undisclosed information to the decision in question: Schneeberger, at
para. 21. However, “more must be established than a technical transgression of
the Act. Innocent misrepresentations are not to result in the revocation of
citizenship”: Schneeberger, at para. 26, citing Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155,
[1993] F.C.J. No. 712 (F.C.T.D.).
[35] That said, misrepresentations
claimed to be “innocent” must be carefully examined, and willful blindness will
not be condoned. If faced with a situation of doubt, an applicant should
invariably err on the side of full disclosure: Canada (Minister of
Citizenship and Immigration) v. Phan, 2003 FC 1194, 240 F.T.R. 239 at para.
33.
[66]
The plaintiff’s primary argument is that the
defendant acted intentionally in concealing material circumstances and in
making false representations.
[67]
The plaintiff’s alternative argument is that
some conduct that falls under section 10, namely false representations, need
not be intentional. Success on this argument would avoid the need to provide
some evidence to establish on a balance of probabilities that there was an
intention to mislead the decision maker.
[68]
The overall goal of section 10 is to ensure that
persons who have obtained permanent resident status and citizenship by
providing false information or by withholding information that is material to
the decision will not continue to benefit from that status. In my view, intent
to mislead the decision maker is required for all conduct referred to in section
10. That intention must be established on a balance of probabilities; the
plaintiff must provide some evidence of intention or some evidence from which a
reasonable inference of intention to mislead can be drawn.
[69]
Section 10 refers to three types of conduct
(false representation or fraud or by knowingly concealing material
circumstances) and it is possible that the same conduct could satisfy all
three, but that is not required.
[70]
Fraud arises in both criminal law and in other
contexts including tort and contract. Fraud is generally defined as
intentional or reckless misrepresentation of fact by words or by conduct that
deceives another person and which results in a detriment to that other person (see
Bruno Appliance and Furniture, Inc v Hryniak, 2014 SCC 8). The conduct
which amounts to fraud can also be an omission or silence in situations where
there is an obligation to disclose information.
[71]
The requirement for intention with respect to conduct
that amounts to fraud in section 10 does not need to be spelled out because
intention, which can include recklessness regarding the statement or omission
and the other person’s likely reliance on that statement, is part of the
definition of fraud.
[72]
The element of “knowingly” with respect to
concealing material circumstances makes it clear that inadvertent omissions
will not be caught. The jurisprudence has further clarified that an intention
to mislead the decision maker is required (see Odynsky and Rogan,
above).
[73]
However, as noted in Phan, given the
privilege of permanent resident status or citizenship being sought by an
applicant, when there is doubt, the applicant should err on the side of full
disclosure.
[74]
This leaves for consideration the conduct
contemplated by false representations, which the plaintiff alternatively
submits does not require an intention to mislead. As noted above, I do not
agree. Simply making a false statement (i.e., a false representation) in error
or inadvertently should not result in a declaration under section 10. Some
intention to mislead is required. This intention must be established on a
balance of probabilities.
[75]
However, it is difficult to conceive of a
situation where a false representation that is not inadvertent would not also
be covered by the conduct described as fraud, given that in the context of
permanent resident applications, the representation would be relied on by the
decision maker and the applicant would benefit from making the false
representation.
[76]
Similarly, situations where an applicant would
“knowingly conceal material circumstances” may also constitute a “false
representation” and/or fraud.
[77]
I note the recent case of Canada (Minister of Citizenship and Immigration) v Thiara, 2014 FC 220, 2014
FCJ No 288 [Thiara], which the defendant brought to the Court’s
attention after the hearing and before my reasons were released.
[78]
In that case, Justice Roy concluded, as I have,
that an intent to deceive is required.
[49] Obtaining citizenship by false
representation implies an action made with the intent to deceive. That to my
way of thinking implies the knowledge that something is false and the
conscience that a statement is made. Black’s Law Dictionary, 7th ed.,
West Group, defines a representation as “a presentation of fact – either by
words or by conduct – made to induce someone to act”. In this case, the burden
of proving that the defendant was conscious he was making a representation,
i.e. that it was made to induce action, has not been discharged. On a balance
of probabilities, the defendant’s behaviour must be found to be innocent.
[79]
The facts in Thiara were quite different
and no intention was found.
[80]
As elaborated upon below, in the present case,
the defendant’s actions in providing false answers and concealing that he had
been charged with a criminal offence and was awaiting trial at the time of his
application can not be characterized as innocent misrepresentations, nor are
they technical transgressions. The defendant withheld truthful information and
provided untruthful answers which had the effect of foreclosing further
inquiries. CIC relied on the untruthful answers and the concealment of
significant, material and pertinent information.
[81]
I would also note that I have not been persuaded
by the plaintiff’s submissions that the jurisprudence regarding section 40 of
IRPA is instructive and bolsters the view that false representations within the
meaning of section 10 of the Citizenship Act do not include an element
of intention to mislead. It may appear incongruous that an unintentional or
inadvertent “misrepresentation” or an honest mistake in an application for
permanent resident status would result in inadmissibility if caught at the time
the person is a permanent resident, but would not result in a revocation of
citizenship if caught once the person has become a citizen. However, the two
relevant provisions are different in several respects. These provisions must be
considered and interpreted within the context of the respective statutes; in
addition, they are differently worded, engage different procedures and result in
different consequences. Also, as noted above, an honest and reasonable mistake
can be raised, albeit only in exceptional circumstances, with respect to
misrepresentation in an application for permanent residency. This could avoid
the consequences that result in inadmissibility pursuant to section 40 of
IRPA.
Should
summary judgment be granted?
The
Plaintiff’s position
[82]
The Minister submits that summary judgment
should be granted and there is no genuine issue for trial. The defendant has
admitted the essential facts: he shot his neighbour on September 28, 1995; the
police arrested and detained him from September 1995 to December 1995; and, he
was charged with attempted murder. Moreover, the defendant’s litigation
guardian admitted at discovery that he knew he was facing criminal charges at
the time he filled out his application and that he should have disclosed this
information.
[83]
The defendant’s answers foreclosed further
inquiries into his potential inadmissibility, therefore, on a balance of
probabilities, the defendant gained his permanent resident status and
citizenship by false representation or by fraud or by concealing material
circumstances.
[84]
The Minister submits that the defendant’s
answers on the supplementary form alone are sufficient to support a finding of
false representation and knowing concealment of material circumstances. He
falsely answered “no” to question 4, which asked whether he had problems with
the police. He also falsely answered “no” in response to question 1, which
asked whether he had any contact with any state security service.
[85]
The Minister argues the defendant’s answer to
question 20 on the permanent resident application, stating that he had not
committed a criminal offence in any country, also supports a finding of false
representation and knowing concealment of material circumstances. If the
defendant was uncertain whether he had committed a criminal offence, he should
have provided details on a separate sheet, as instructed on the application.
[86]
Additionally, the defendant provided false
answers to clearly worded questions; the only reasonable conclusion is that he
did so with intent to mislead the decision-maker. The Minister submits that if
an intention to mislead is required, it has been established on a balance of
probabilities.
[87]
The Minister further submits that none of the
other issues the defendant has raised are genuine issues for trial.
[88]
All the evidence that will be available at trial
exists now; nothing more will be available if there is a trial. The defendant’s
litigation guardian gathered information from family members and from his
father and provided evidence at the examinations for discovery.
[89]
A trial is not needed to determine whether
intention to mislead is an element of section 10 as this is a question of law
that has been fully argued on this motion for summary judgment; a trial will
not enhance the Court’s ability to determine this issue.
[90]
With respect to the defendant’s submission that
the Minister is bound by its Notice of Revocation which referred to willful conduct
by the defendant, the Minister submits that the Notice also referred to false
representations. Moreover, the jurisprudence has established that the Notice
only provides a brief summary of the basis of the Minister’s position and the
details are provided in the Statement of Claim (Odynsky, above at para
97). The Statement of Claim provided sufficient details and the defendant
responded to the issues raised. The defendant can not assert that he was
prejudiced in any way by the words of the Notice.
Defendant’s
Position
[91]
The defendant submits that the Minister has not
met its onus of establishing the necessary facts, therefore, summary judgment
should not be granted.
[92]
The defendant argues that there is a lack of
clear evidence with respect to the criminal proceedings in Bosnia and
Herzegovina, including: contradictory evidence regarding the specific offence
he was charged with and when; the delay between 1995-2000; no information about
how CIC processed his police and security clearances; and no information about
how he was able to obtain and renew his passport and travel to and from Bosnia
and Herzegovina. The defendant submits that examinations for discovery of a
representative of CIC produced no satisfactory explanations.
[93]
The defendant raised other issues, including
whether the wording of the questions in the 1998 form required that he disclose
the shooting incident, and, why the form and the questions were later revised.
[94]
The defendant contends that the Minister’s
Notice in Respect of Revocation alleges that the defendant “willfully
made false representations by knowingly concealing material circumstances
namely a criminal charge that would have made you inadmissible to Canada” and
alleges that he obtained citizenship and permanent residence “by knowingly
concealing material circumstances”. Therefore, the Minister cannot argue that
intention is not required.
[95]
The defendant maintains that the issue of
whether an intent to mislead is required under section 10 is a live issue
requiring a trial, as is the issue of whether the defendant had an intent to
mislead.
[96]
The defendant submits that he did not conceal
material circumstances or make false representations, because he had an honest
belief that he had not committed a criminal offence. At the time of preparing
his application for permanent residence, he had not been found to have
committed a criminal offence. He notes that the criminal proceedings in Bosnia and Herzegovina occurred in 2000, five years after the shooting incident and two
years after he applied for permanent residence.
[97]
He also notes that question 20 asked whether he
had “committed a criminal offence in any country” and did not ask whether he
was charged with or involved in criminal proceedings. The defendant argues
that, his answer, “no”, was an accurate answer because at that time, there had
been no determination of his guilt.
[98]
The defendant adds that he passed police and
security clearance. This, combined with his belief that he shot his neighbour
out of self-defence and in the post-civil war environment of his home country,
led him to believe that he had not committed a criminal offence at the time he
completed his application.
[99]
The defendant argues that all these
circumstances must be considered as they provide the objective basis for his subjective
belief.
[100] The defendant also submits that there are credibility issues with
respect to the evidence, the determination of which require a trial.
Summary
Judgment is granted
[101] As noted in the jurisprudence referred to above, summary judgment
permits the Court to summarily dispense with cases which should not proceed to
trial because there is no genuine issue to be tried.
[102] The Court must consider whether the case “is so doubtful that it
does not deserve consideration by the trier of fact at a future trial” while
ensuring that “claims involving real issues be allowed to proceed to trial” (Laroche,
above).
[103] The defendant has not met the evidentiary burden required to
establish that there is a genuine issue for trial. The facts do not support the
defendant’s position that the issues raised should be the subject of a trial.
[104] The majority of the issues the defendant proposed as genuine issues
for trial are speculative questions that are posed to support the argument that
the defendant had some objective basis for his subjective belief that he had
not committed an offence and that his answers were not false.
[105] The defendant was (and still is) facing a charge of attempted
homicide; contrary to his submission, there was no ambiguity about the charge
he was facing at the time he provided his answers. The reason why the forms
were revised has no bearing on the fact that the defendant was obliged to
answer the questions on the forms, as they existed in 1998, truthfully and
completely. His ability to travel twice to Canada and return to Bosnia and Herzegovina with a passport does not change the fact that he knew he was facing
a criminal charge of attempted homicide. This is particularly true since one of
his trips was to attend his trial. While the defendant submits that he passed
the security clearances for permanent resident status and this informed his
belief that he had not committed a criminal offence, I note that he filled in
the forms concealing his criminal proceedings and falsely answering the
questions before the security clearances. In my view, his responses
foreclosed other inquiries that could have resulted in a different outcome
regarding those clearances.
[106] The only possible issue for a trial would be whether an intention to
mislead the decision maker is a necessary requirement pursuant to section 10
and whether the defendant had such intent.
[107] The legal issues regarding the intent required pursuant to section
10 have been fully argued by the parties on this motion and the relevant
evidence to determine whether the defendant had the requisite intent is on the
record. A trial will not enhance the Court’s ability to resolve these issues.
[108] As noted above, I have found that an intention to mislead the
decision maker is an element of section 10. Intention must be established on a
balance of probabilities.
[109] The defendant’s argument is basically that he answered the questions
truthfully based on his subjective belief and based on his own interpretation
of the questions on the permanent resident application and supplemental form.
[110] I acknowledge that the questions were worded in a broad manner,
opening the door to the defendant’s argument that his responses were accurate.
However, there can be no doubt about the nature of the information sought and
the purpose of the application. For example, the question which asked “did you
have problems with the police” is a broad question which might capture many
situations that would include and go beyond altercations with the police,
arrests, or possible abuse of authority by the police, but it certainly would
include the very serious problems the defendant had with the police.
[111] The defendant’s explanation that he answered “no” to that question
because his problems were not with the police but rather with his neighbour and
that the police were just doing their job in arresting him and detaining him
for two months is not a reasonable explanation. This answer avoids the
question and is another example of being wilfully blind to the purpose of the
question and the need to disclose pertinent information in the context of an
application for permanent residence.
[112] The applicant had been arrested, detained and charged with attempted
homicide. He could not hold a reasonable belief that he had no problems with
the police. Similarly he could not hold a reasonable belief that he had no
contact with any state security agency, given his arrest and detention.
[113] The defendant’s view that he had not committed a criminal offence,
because he had not been tried and convicted at that time can not be condoned. The
defendant argues that a person has not committed a criminal offence unless they
have been convicted by a court. He notes that the question did not ask if he
had been charged with an offence or convicted of an offence, but only if
he had committed an offence – and his subjective belief was that he had
not.
[114] I do not accept the argument that a person can truthfully say they
have not committed an offence unless they are tried and convicted. This
suggests that a person could commit an offence, flee and avoid detection and
still be able to attest that they had not committed an offence.
[115] In this case, the defendant had been charged with attempted
homicide. Even if he believes that his actions were in self defence, he could
not reasonably conceal the information regarding the charges he faced. The
permanent resident application form directed applicants to be truthful. He
attested that he understood the questions and that his answers were truthful.
The form also directed applicants to provide additional details or
explanations. The defendant should have done so to elaborate as he saw fit on
his subjective view that he had not committed an offence.
[116] Moreover, his answers to the other questions which indicated he had
no problems with the police and no contact with any state security agencies
were clearly false. These statements can only be regarded as being made with
the intention to mislead the decision maker.
[117] As Justice Gibson noted in Phan, above:
[36] On the
evidence before me, I am satisfied that the Defendant was likely an innocent
participant in drug trafficking when he undertook to help out his
"friend" in October of 1993. I am satisfied that that was his belief.
That being said, it was not for him to conclude that his participation in drug
trafficking was "innocent" or "minor" and that the charges
against him, whatever they were, and he apparently chose not to find out what
they were, were "minor" or would be "dropped" or that he
would be found innocent on the charges. Rather, it was for him to acquaint
himself with the kind of trouble he was in and to disclose that trouble to
citizenship officials or judges in a manner that would allow them to determine
whether they were precluded by law, for the time being at least, from
conferring citizenship on him.
[37] However
justified, from the Defendant's point of view, might have been his motivation
in suppressing information so that he could get his citizenship and a passport
so that he could visit his dying mother, it did not justify the suppression of
information in the context of a very significant process where warnings were
provided to him at every turn. If he had made full disclosure and explained the
urgency that confronted him, that would have constituted the kind of full
disclosure that would have allowed a citizenship judge or citizenship official
to carry out his or her obligation. By taking it unto himself to decide that
he did not need to disclose his difficulties, no matter how he characterized
those difficulties in his own mind, and in circumstances where he either knew
or certainly should have known that there might be an impediment to his
obtaining citizenship, was completely unjustified. I am satisfied that it
amounted both to the making of a false representation and to a knowing
concealment of material circumstances on his part.
[My
emphasis.]
[118] Similarly in the present case, the defendant’s subjective belief,
given the purpose of the permanent resident application, of which he was aware,
was not objectively justified.
[119] The plaintiff has established on a balance of probabilities that the
defendant had the intent to mislead the decision maker when he knowingly
concealed material circumstances and made false representations. He knew the
purpose of the application form, he gave evasive and false answers and he
concealed very significant information regarding the charges of attempted
homicide that he faced. His intention to mislead the decision maker can be
reasonably inferred from his conduct. If he did not intend to mislead, he was
wilfully blind to the fact that the answers provided would mislead or deceive
the decision maker – and as a result of this deception, he obtained permanent
resident status.
[120] This case does raise circumstances that require the Court to
carefully heed the guidance from the jurisprudence to proceed with caution in
considering a summary judgment as it precludes the defendant his “day in
court.” I am aware of the significant consequences of revocation of citizenship
for this elderly defendant who has been in Canada for 15 years and is now in
poor health. However, these circumstances do not overcome the facts as
established by the plaintiff.
[121] As noted at the outset, it may be that such circumstances will be
considered in the submissions to the Governor in Council.
Conclusion
[122] 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. After considering the circumstances of the defendant, I
decline to order costs.
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