Docket: T-1433-14
Citation:
2015 FC 572
Toronto, Ontario, May 1, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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LAHAI KAMARA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
The Facts
[1]
The Applicant is a Canadian permanent resident,
originally from Sierra Leone. He became a permanent resident in June 2008. He
seeks Canadian citizenship, which is conferred in accordance with the Citizenship
Act (RSC, 1985, c C-29).
[2]
On August 26, 2013, the Applicant was charged
with one count of assault with a weapon (Criminal Code s 267(a)), one
count of mischief (Criminal Code s 430(4)), and one count of theft under
$5000 (Criminal Code s 334(b)).
[3]
On November 26, 2013, the Applicant was sent a
letter from Citizenship and Immigration Canada [CIC]
indicating that CIC needed documentation pertaining to the Applicant’s pending
criminal charge for assault with a weapon, including information on the nature of
the offence (summary or indictable).
[4]
The letter stated:
If the case is still pending and the charge
is Crown elect, we must know if the Crown has made a decision yet on how the
case will proceed (i.e. summarily or by indictment). This information may be on
the Court Information Sheet, or you may also have to send us your Charge
Screening Form.
(Applicant’s Record, p. 34)
[5]
On December 5, 2013, the Applicant’s lawyer responded,
indicating that the Applicant’s charge for assault with a weapon pursuant to section
267(a) of the Criminal Code, (a hybrid offence) was still pending, and
that the Crown had not yet indicated its election of whether to proceed
summarily or by indictment.
[6]
The Applicant attended a hearing before a
Citizenship Judge [Judge] on February 11, 2014.
[7]
At the end of the February 11 hearing, the
Citizenship Judge gave the Applicant a two-page document entitled “Notice to the Applicant” [Notice]. This Notice
advised the Applicant to provide documentary evidence within 45 days regarding
the “outcome of pending criminal charges and whether
the Crown proceeded by summary conviction or indictment.”
[8]
The Applicant did not provide any documentation
and/or response to the Citizenship Judge or CIC, as required in the Notice,
within the 45 day deadline.
II.
The Decision
[9]
The Citizenship Judge refused the Applicant’s
application for citizenship on April 16, 2014 [the Decision]. The Citizenship
Judge found that the Applicant had failed to provide, within 45 days of his
hearing, documentation verifying the outcome of his pending criminal charge or
whether the Crown was proceeding by way of summary conviction or by indictment.
The Citizenship Judge therefore determined that the Applicant is a person
currently charged with an indictable offence. The relevant part of the Decision
is extracted below:
“There is an
indication on file that you have pending criminal charges against you, which
gives rise to the application of Section 22 of the Citizenship Act,
which provides, in part:
Despite anything
in the Act, a person shall not be granted citizenship… or take the oath of
citizenship… while the person is charged with, on trial for... an indictable
offence under any Act of Parliament…
In your interview
with me, you acknowledged you have criminal charges pending against you, and
that your next court date is 1 May 2014. I asked you to provide, within 45 days
of your hearing, documentation verifying the outcome of pending criminal
charges and whether the Crown was proceeding by way of summary conviction or by
indictment. Unless your trial date was moved forward and/or unless the Crown
withdrew the charges, it would have been impossible for you to provide outcome
documentation; however, information about how the Crown is proceeding might
have been available. In any event, you have provided no documentary verification
of any kind.
In these
circumstances, Section 22 of the Citizenship Act applies to your
application for citizenship, and you do not meet the requirements of the Citizenship
Act. I therefore cannot approve your application for citizenship.”
III.
Position of the Parties
[10]
The Applicant raises two issues. First, he
contends that the Citizenship Judge breached his rights to procedural fairness,
particularly as a self-represented person.
[11]
The gist of the Applicant’s contentions in this
regard is that the Judge provided to the Applicant the Notice in an envelope,
and told him to provide it to his lawyer. The Applicant claims that the Judge
had stated that all aspects of the application had been satisfied, but for the
pending criminal charge.
[12]
The Applicant was, despite his efforts, unable
to meet his lawyer to present the envelope. He therefore missed the deadline of
45 days contained in the Notice, which required a response with respect to the
outcome of the pending criminal charges, and whether the Crown had proceeded by
way of summary conviction or indictment.
[13]
Apart from arguing that it was unfair to provide
a self represented litigant with a request that involved technical legal
requirements, the Applicant argues that it would have, in any case, been
impossible to meet the Judge’s request within the time limit imposed, as the 45
day deadline ended well before the criminal trial began. In previous
correspondence to the CIC regarding the same citizenship application, the Applicant’s
criminal lawyer had indicated that an election (of summary conviction or
indictment) would not be made by the prosecution before trial.
[14]
The Applicant’s second submission is that the Decision
was illogical, and its reasons were inadequate in their sufficiency. The Decision
lacked logic because it requested information that was simply not available - even
if procedural fairness had been afforded to the Applicant, he would not have
been able to provide a response to the Notice.
[15]
Furthermore, the Applicant contends that the
reasons provided by the Judge were grossly inadequate, and contrary to section 14(3)
of the Citizenship Act. He further relies on Via Rail Inc v National
Transportation Agency (CA), [2001] 2 FC 25 at para 22, which states:
[22] The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion. Rather, the decision maker must set out its
findings of fact and the principle evidence upon which those findings are
based. The reasons must address the major points in issue. The reasoning
process followed by the decision maker must be set out and must reflect
consideration of the main relevant factors.
[16]
The Applicant argues that the law is that when
the Crown does not make an election, it is presumed that the Crown will proceed
summarily (R v Randell [2001] CanLII 19855 (NL PC) at para 17; R v
Mitchell, 1997 CanLII 6321 (ON CA) at p 145).
[17]
The Respondent replies that there was neither
any breach of fairness, nor inadequacy of reasons. The Respondent argues that
the reasons were sufficiently clear, and consistent with the entire record.
IV.
Standard of Review
[18]
The parties agree that procedural fairness
issues are to be reviewed on a standard of correctness, whereas the other
issues raise by the Applicant are to be adjudicated on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62; Mission Institution v Khela, 2014 SCC 24).
V.
Analysis
[19]
The Applicant has failed to convince me that
there was any occurrence of procedural unfairness, or that the decision was
otherwise unreasonable.
[20]
First, it is unfortunate that the Applicant was
unrepresented when he went for his citizenship interview, and I note that he
had some personal difficulties in the period after the interview, which were
both given as reasons for not having read the Notice provided to him when he
could not contact his lawyer. However, these were not relevant considerations
in this instance. The Judge met his obligation to observe the principles of
procedural fairness, including giving the Applicant an opportunity to (a)
provide initial written submissions on his criminality issues, (b) providing
him a chance to present his views in an in-person citizenship interview, and
(c) allowing for additional submissions in a follow-up written response after
the interview.
[21]
The Judge cannot be held responsible for the
personal choices of the Applicant, who did not ensure that the Notice was sent
to his lawyer, and did not read the letter himself when he realized that he
would not be able to get the Notice to his lawyer within the 45 day deadline. Thus,
that deadline was ignored.
[22]
First, there are other means by which the
Applicant could have communicated the Notice to his lawyer, given that he was
not able to see him in person, such as by mail, fax, or email.
[23]
Second, the Applicant was well aware that the
pending criminal charges were an issue in finalizing his citizenship, as this
was not the first time that he had been asked for an update by citizenship
officials. A similar request for information was previously solicited from him
by CIC, and he complied with the request. In other words, the Applicant was not
unfamiliar with the nature of information being sought, and the means to obtain
it. Accordingly, his rights to procedural fairness were not violated when he
failed to respond.
[24]
With respect to the other issue raised, that of
inadequacy of reasons, I find them neither insufficient nor illogical. Section
22(1)(b) of the Citizenship Act makes it quite clear that a Judge cannot
grant citizenship to a person who “is charged with, on
trial for or subject to or a party to an appeal relating” to an
indictable offence. Furthermore, the jurisprudence is also clear that until such
time as a Crown election is made to proceed otherwise, a hybrid offence is
deemed to be an indictable offence in accordance with section 34(1)(a) of the Interpretation
Act, RSC 1985, c I-21 (R v Dudley, 2009 SCC 58 at para 21; Ahmed
v Canada (Minister of Citizenship and Immigration), 2009 FC 672 at paras
38-40). At the time of the citizenship decision, the Crown had not elected
which way it would be proceeding. Had the Judge utilized his discretion to
delay his Decision until the beginning of the criminal trial, the outcome of
this matter might well have been different.
VI.
Conclusion
[25]
As stated during the hearing, while I may
not have proceeded in the same manner had I been in the place of the Judge,
that is not the role of this Court on judicial review. Rather, I am only tasked
to examine whether the Decision was reasonable, and the process, fair. On both
counts, I conclude in the affirmative.
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