Docket: T-1839-14
Citation:
2015 FC 1073
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, the 14th day of September 2015
PRESENT: The Honourable Madam Justice Gleason
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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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MAURICE RUBUGA
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Defendant
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JUDGMENT AND REASONS
[1]
This is a motion for default judgment in respect
of a referral initiated by the plaintiff, the Minister of Citizenship and
Immigration [the Minister], pursuant to paragraph 18(1)(b) of the Citizenship
Act, RSC (1985), c. C-29 [the CA]. In this motion, the Minister is seeking
a declaration that the defendant obtained his Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances. Following
the hearing of this motion, the CA was subject to significant amendments. As discussed
below, pursuant to these amendments, an order allowing the Minister’s motion
for default judgment in this case will have the effect of revoking the defendant’s
citizenship.
I.
Legislative context
A.
New provisions of the Citizenship Act that apply
in this case
[2]
The relevant former provisions of the CA (in
force until May 28, 2015, inclusively) under which this motion was first brought,
listed a six-step process for the revocation of an individual’s citizenship in
a case such as this one.
[3]
Under subsections 10(1) and 18(1) of the former
CA, now repealed, the Minister, having reason to believe that an individual
obtained Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances, was required to first notify this individual
of his intention to recommend that the Governor in Council revoke the
individual’s citizenship.
[4]
If the individual wished to oppose this
procedure, he or she could request that the issue be referred to the Federal
Court.
[5]
When an individual made such a request, it was
the Minister’s responsibility to initiate a proceeding before the Federal Court
to obtain a declaration that the individual obtained Canadian citizenship by
false representation or fraud or by knowingly concealing material circumstances.
[6]
Once presented with the case, the Federal Court
would hear the parties and issue the declaration requested if it considered the
allegations to be founded. As noted in Canada (Minister of Citizenship and
Immigration) v Obodzinsky, 2002 FCA 518 at para 15, [2003] 2 FCJ 657 [Obodzinsky],
a declaration issued in this context did not have the effect of revoking the
individual’s citizenship. Rather, it was a factual finding that the citizenship
had been obtained by false representation or fraud or by knowingly concealing
material circumstances.
[7]
If the Minister wished to complete the last step
of the procedure to revoke the individual’s citizenship, he could submit a
report to the Governor in Council based on the declaration issued by the
Federal Court, when applicable, pursuant to former subsection 10(1) of the CA (Obodzinsky,
above, at para 15).
[8]
Once the Minister’s report was received, the
Governor in Council was authorized to revoke the individual’s citizenship if it
was convinced that it had been obtained by false representation or fraud or by
knowingly concealing material circumstances.
[9]
This process was shortened considerably by
amendments to the CA that came into force on June 11, 2015, which created two
distinct revocation procedures.
[10]
In simpler cases, if the Minister considers that
an individual obtained Canadian citizenship by false representation or fraud or
by knowingly concealing material circumstances, he could revoke the citizenship
under the new section 10 of the CA. The Minister would, however, have to
provide the individual with a written notice of his intention to proceed with
the revocation and give the individual the opportunity to make written representations.
Moreover, under subsection 10(4) of the CA, “[a]
hearing may be held if the Minister, on the basis of prescribed factors, is of
the opinion that a hearing is required.” To date, there is no
regulatory provision under the CA that prescribes such factors. A decision to
revoke under section 10 of the CA may be reviewed by the Federal Court, with leave
of the Court (subs 22.1(1) of the CA).
[11]
The more serious cases are governed by the new
section 10.1 of the CA. If the Minister has reasonable grounds to believe that
an individual’s citizenship was obtained by false representation or fraud or by
knowingly concealing material circumstances with respect to a fact described in
section 34, 35 or 37 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], other than a fact that is also described in paragraph 36(1)(a)
or (b) or 36(2)(a) or (b) of the IRPA, under subsection
10.1(1) of the CA the Minister must obtain a declaration from the Federal court
to this effect.
[12]
A declaration issued by the Federal Court in
accordance with new subsection 10.1(1) of the CA has the effect of revoking the
citizenship of the person in question (para 10.1(3)(a) of the CA).
[13]
Under the transitional provisions in the Strengthening
Canadian Citizenship Act, RS, c C‑29 (act making the described amendments
to the CA), the new procedure for revocation provided at subsection 10.1(1) applies
to cases of revocation involving facts described in sections 34, 35 and 37 of
the IRPA (other than a fact also described in paragraph 36(1)(a) or (b)
or 36(2)(a) or (b) of the IRPA) which was before the Federal
Court at the time the new provision came into force, on June 11, 2015. On this,
subsection 40(2) of the Strengthening Canadian Citizenship Act states
the following:
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40. (2) Any proceeding with respect to
allegations that a person obtained, retained, renounced or resumed his or her
citizenship by false representation or fraud or by knowingly concealing
material circumstances, with respect to a fact described in section 34, 35 or
37 of the Immigration and Refugee Protection Act other than a fact
that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that
Act, that is pending before the Federal Court immediately before the day
on which section 8 [of the Strengthening Canadian Citizenship Act]
comes into force, as a result of a referral
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40. (2) Les instances en cours relatives à des allégations portant que
l’acquisition, la conservation ou la répudiation de la citoyenneté d’une
personne ou sa réintégration dans celle-ci est intervenue par fraude ou au
moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits
essentiels — concernant des faits visés à l’un des articles 34, 35 et 37 de
la Loi sur l’immigration et la protection des réfugiés, autre qu’un
fait également visé à l’un des alinéas 36(1)a) et b) et (2)a) et b) de cette
loi —, à l’entrée en vigueur de l’article 8 [de la Loi renforçant la
citoyenneté canadienne],
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under
section 18 of the Citizenship Act as that section 18 read immediately
before that day, is to be continued as a proceeding under subsection 10.1(1)
of the Citizenship Act, as enacted by section 8 [of the Strengthening
Canadian Citizenship Act].
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devant la
Cour fédérale à la suite d’un renvoi visé à l’article 18 de la Loi sur la
citoyenneté, dans sa version antérieure à cette entrée en vigueur, sont
continuées sous le régime du paragraphe 10.1(1) de cette loi, édicté par
l’article 8 [de la Loi renforçant la citoyenneté canadienne].
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[Emphasis added]
B.
Related provisions that apply in this case
[14]
Sections 34, 35 and 37 of the IRPA, above,
address inadmissibility on grounds of security, violating human or
international rights or organized crime, as defined by the IRPA.
[15]
Subsection 35(1) of the IRPA is of particular
relevance in this case:
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35. (1)
A permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
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35. (1) Emportent interdiction de
territoire pour atteinte aux droits humains ou internationaux les faits
suivants :
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(a) committing an act outside Canada that constitutes an offence
referred to in sections 4 to 7 of the Crimes Against Humanity and War
Crimes Act;
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a) commettre, hors du Canada, une des infractions visées aux
articles 4 à 7 de la Loi sur les crimes contre l’humanité et les crimes de
guerre;
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…
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…
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[16]
Committing genocide, a crime against humanity or
war crime outside Canada is considered a criminal offence under subsection 6(1)
of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24.
[17]
Subsection 6(3) of that act defines the terms “crime against humanity”, “war
crime,” and “genocide” as follows:
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“crime against humanity”
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« crime contre l’humanité »
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“crime against humanity” means murder, extermination, enslavement,
deportation, imprisonment, torture, sexual violence, persecution or any other
inhumane act or omission that is committed against any civilian population or
any identifiable group and that, at the time and in the place of its
commission, constitutes a crime against humanity according to customary
international law or conventional international law or by virtue of its being
criminal according to the general principles of law recognized by the
community of nations, whether or not it constitutes a contravention of the
law in force at the time and in the place of its commission.
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« crime contre l’humanité » Meurtre, extermination, réduction en
esclavage, déportation, emprisonnement, torture, violence sexuelle,
persécution ou autre fait — acte ou omission — inhumain, d’une part, commis
contre une population civile ou un groupe identifiable de personnes et,
d’autre part, qui constitue, au moment et au lieu de la perpétration, un
crime contre l’humanité selon le droit international coutumier ou le droit
international conventionnel ou en raison de son caractère criminel d’après
les principes généraux de droit reconnus par l’ensemble des nations, qu’il
constitue ou non une transgression du droit en vigueur à ce moment et dans ce
lieu.
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“war crime”
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« crime de guerre »
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“war crime” means an act or omission committed during an armed
conflict that, at the time and in the place of its commission, constitutes a
war crime according to customary international law or conventional
international law applicable to armed conflicts, whether or not it
constitutes a contravention of the law in force at the time and in the place
of its commission.
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« crime de guerre » Fait — acte ou omission — commis au cours d’un
conflit armé et constituant, au moment et au lieu de la perpétration, un
crime de guerre selon le droit international coutumier ou le droit
international conventionnel applicables à ces conflits, qu’il constitue ou
non une transgression du droit en vigueur à ce moment et dans ce lieu.
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“genocide”
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« génocide »
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“genocide” means an act or omission committed with intent to
destroy, in whole or in part, an identifiable group of persons, as such, that
at the time and in the place of its commission, constitutes genocide
according to customary international law or conventional international law or
by virtue of its being criminal according to the general principles of law
recognized by the community of nations, whether or not it constitutes a
contravention of the law in force at the time and in the place of its
commission.
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« génocide » Fait — acte ou omission — commis dans l’intention de
détruire, en tout ou en partie, un groupe identifiable de personnes et
constituant, au moment et au lieu de la perpétration, un génocide selon le
droit international coutumier ou le droit international conventionnel, ou en
raison de son caractère criminel d’après les principes généraux de droit
reconnus par l’ensemble des nations, qu’il constitue ou non une transgression
du droit en vigueur à ce moment et dans ce lieu.
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[18]
Moreover, these offences include conspiracy,
attempts to commit, being an accessory after the fact or counselling (subs
6(1.1) of the Crimes Against Humanity and War Crimes Act).
C.
Applicable provisions at the time the defendant
submitted his refugee claim and application for permanent resident status
[19]
Committing a war crime or crime against humanity
constituted a grounds for exclusion as a refugee as defined under the United
Nations Convention Relating to the Status of Refugees [the Convention] and
constituted a grounds for inadmissibility under the Immigration Act, RSC
1985, c I-2 at the time the defendant submitted his refugee claim and application
for permanent resident status, on July 2, 1998, and December 13, 1999,
respectively.
[20]
More specifically, to be recognized as a
Convention refugee, the defendant had to show that he met the definition of “Convention refugee.” When the defendant submitted his
refugee claim on July 2, 1998, this definition was provided under subsection 2(1)
of the Immigration Act:
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“Convention refugee” means any person who
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« réfugié au sens de la Convention » Toute personne :
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(a) by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
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a) qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(i) is outside the country of the person’s nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of that country, or
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(i) soit se trouve hors du pays dont elle a la nationalité
et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection
de ce pays;
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(ii) not having a country of nationality, is outside the
country of the person’s former habitual residence and is unable or, by reason
of that fear, is unwilling to return to that country, and
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(ii) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison
de cette crainte, ne veut y retourner;
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(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
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b) n’a pas perdu son statut de réfugié
au sens de la Convention en application du paragraphe (2).
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but does not include any person to whom the Convention does not
apply pursuant to section E or F of Article 1 thereof, which sections are set
out in the schedule to this Act.
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Sont exclues de la présente définition les personnes soustraites à
l’application de la Convention par les sections E ou F de l’article premier
de celle-ci dont le texte est reproduit à l’annexe de la présente loi.
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[21]
Among other things, the defendant had to show
that he was not excluded as a refugee under clause 1F(a) of the Convention, which
states the following:
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F. The provisions of this Convention shall not apply to any person
with respect to whom there are serious reasons for considering that:
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F. Les dispositions de cette Convention ne seront pas applicables
aux personnes dont on aura des raisons sérieuses de penser :
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(a) he has committed a crime against peace, a war crime, or
a crime against humanity, as defined in the international instruments drawn
up to make provision in respect of such crimes;
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a) qu’elles ont commis un crime contre
la paix, un crime de guerre ou un crime contre l’humanité, au sens des
instruments internationaux élaborés pour prévoir des dispositions relatives à
ces crimes;
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[22]
Paragraph 19(1)(j) of the Immigration
Act, in force when the defendant submitted his application for permanent
resident status on December 13, 1999, and which is the precursor to section 35 of
the IRPA, provided that persons were to be excluded in cases where there were
reasonable grounds to believe they had committed a war crime or crime against
humanity outside Canada:
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19. (1)
No person shall be granted admission who is a member of any of the following
classes:
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19. (1) Les personnes suivantes
appartiennent à une catégorie non admissible :
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…
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…
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(j) persons who there are reasonable grounds to believe
have committed an act or omission outside Canada that constituted a war crime
or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal
Code and that, if it had been committed in Canada, would have constituted
an offence against the laws of Canada in force at the time of the act or
omission.
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j) celles dont on peut penser, pour
des motifs raisonnables, qu’elles ont commis, à l’étranger, un fait
constituant un crime de guerre ou un crime contre l’humanité au sens du
paragraphe 7(3.76) du Code criminel et qui aurait constitué, au
Canada, une infraction au droit canadien en son état à l’époque de la
perpétration.
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[23]
Subsection 7(3.76) of the Criminal Code, RSC
1985, c C-46, in force at the time, defined “crime
against humanity” and “war crime” as
follows:
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“crime against humanity”
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« crime contre l’humanité »
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“crime against humanity” means murder, extermination, enslavement,
deportation, persecution or any other inhumane act or omission that is
committed against any civilian population or any identifiable group of
persons, whether or not it constitutes a contravention of the law in force at
the time and in the place of its commission, and that, at that time and in
that place, constitutes a contravention of customary international law or
conventional international law or is criminal according to the general
principles of law recognized by the community of nations.
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« crime contre l’humanité » Assassinat, extermination, réduction
en esclavage, déportation, persécution ou autre fait – acte ou omission –
inhumain d’une part, commis contre une population civile ou un groupe
identifiable de personnes – qu’il ait ou non constitué une transgression du
droit en vigueur à l’époque et au lieu de la perpétration – et d’autre part,
soit constituant, à l’époque et dans ce lieu, une transgression du droit
international coutumier ou conventionnel, soit ayant un caractère criminel d’après
les principes généraux de droit reconnus par l’ensemble des nations.
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“war crime”
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« crime de guerre »
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“war crime” means an act or omission that is committed during an
international armed conflict, whether or not it constitutes a contravention
of the law in force at the time and in the place of its commission, and that,
at that time and in that place, constitutes a contravention of the customary
international law or conventional international law applicable in
international armed conflicts.
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« crime de guerre » Fait – acte ou omission – commis au cours d’un
conflit armé international – qu’il ait ou non constitué une transgression du
droit en vigueur à l’époque et au lieu de la perpétration – et constituant, à
l’époque et dans ce lieu, une transgression du droit international coutumier
ou conventionnel applicable à de tels conflits.
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[24]
These definitions included attempting or
conspiring to commit, counselling any person to commit, aiding or abetting any
person in the commission of, or being an accessory after the fact, pursuant to
subsection 7(3.77) of the Criminal Code.
[25]
A copy of all the above-noted legislative
provisions is attached to these reasons.
II.
Context of the motion
[26]
The defendant, a Rwandan citizen from the Hutu
ethnic group, claimed refugee status on July 2, 1998. The Refugee Protection Division
[RPD] granted this status on October 13, 1999. On December 13, 1999, the defendant
applied for permanent residence, and he became a permanent resident on May 31,
2001. The defendant then applied for citizenship and became a Canadian citizen
on September 13, 2004.
[27]
On March 28, 2014, the Minister sent a notice to
the defendant informing him of his intention to recommend that the Governor in
Council revoke his citizenship, in accordance with sections 10 and 18 of the
CA, now repealed.
[28]
On April 10, 2014, as was his right, the defendant
requested that his case be referred to this Court. The Minister then initiated this
proceeding against the defendant on August 26, 2014, serving the solicitor who
was representing the defendant at the time, and leaving a copy of his statement
of claim at the defendant’s residence with his wife.
[29]
In his statement of claim, the Minister alleges
that the defendant made false representations in his refugee claim and his
application for permanent resident status, with regard to his identity and
origins, concealing the fact that he was a member of the Rwandan armed forces
[FAR]. The Minister also alleges that the defendant participated in the
genocide that occurred in Rwanda between April and July 1994, during which
hundreds of thousands of Rwandans from the Tutsi ethnic group and moderate
Rwandans from the Hutu ethnic group were massacred. The Minister alleges that
if the defendant had told the truth about his past, he would not have obtained refugee
status or permanent resident status (and therefore he would never have been
considered eligible to become a Canadian citizen), because he would have been deemed
ineligible under paragraph 19(1)(j) of the Immigration Act (now
section 35 of the IRPA).
[30]
Although he asked for this case to be referred
to this Court, the defendant was not present at the hearing, even though the
Minister’s statement of claim was served on the solicitor representing him at
the time.
[31]
On February 16, the Minister filed a motion for
default judgment under subsection 210(1) of the Federal Courts Rules, SOR/98-106
[the Rules], providing a significant amount of evidence by affidavit. A copy of
this motion for default judgment was served at the home of the defendant, on
his wife.
[32]
The Minister’s motion was heard April 14, 2015,
and I reserved judgment.
[33]
On June 1, 2015, counsel for the Minister wrote
to the Court, taking the position that the new provisions of section 10.1 of
the CA applied in the present case, since the statement of claim and notice of
motion submitted by the Minister already included allegations that the defendant
made false representations and knowingly concealed material circumstances with
respect to a fact described in section 35 of the IRPA.
[34]
I agree with the Minister on this and find that
the relevant provisions of section 10.1 of the CA, recently in force, apply to
the present case in accordance with subsection 40(2) of the Strengthening
Canadian Citizenship Act.
[35]
I also find that, for the reasons set out below,
the Minister established on a balance of probabilities that the defendant
obtained his Canadian citizenship by false representation and by knowingly
concealing material circumstances set out in section 35 of the IRPA, such that
the declaration being sought should be issued. Pursuant to subsection 10.1(3) of
the CA, this declaration has the effect of revoking the defendant’s Canadian
citizenship.
III.
Default proceeding
[36]
The pleadings entered for the present motion
were not served on the defendant personally and he did not attend the hearing
of his case. Before considering the evidence submitted by the plaintiff, the
Court must determine whether the defendant was served in due form and whether it
is appropriate to continue in his absence.
[37]
Rule 127 governs the service of originating
documents and states the following:
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Service of originating documents
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Signification de l’acte introductif d’instance
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127.
(1) An originating document that has been issued, other than in an appeal
from the Federal Court to the Federal Court of Appeal or an ex parte
application under rule 327, shall be served personally.
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127. (1) L’acte introductif d’instance
qui a été délivré est signifié à personne sauf dans le cas de l’appel
d’une décision de la Cour fédérale devant la Cour d’appel fédérale et dans le
cas d’une demande visée à la règle 327 et présentée ex parte.
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(2) A party who has already participated in the proceeding need
not be personally served.
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(2) Il n’est pas nécessaire de signifier ainsi l’acte
introductif d’instance à une partie qui a déjà participé à l’instance.
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[Emphasis added]
[38]
The terms governing personal service on an
individual are set out in rule 128 as follows:
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Personal service on individual
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Signification à une personne physique
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128.
(1) Personal service of a document on an individual, other than an individual
under a legal disability, is effected
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128. (1) La signification à personne
d’un document à une personne physique, autre qu’une personne qui n’a pas la
capacité d’ester en justice, s’effectue selon l’un des modes suivants :
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(a) by leaving the document with the individual;
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a) par remise du document à la
personne;
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(b) by leaving the document with an adult person
residing at the individual's place of residence, and mailing a copy of the
document to the individual at that address;
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b) par remise du document à une
personne majeure qui réside au domicile de la personne et par envoi par la
poste d’une copie du document à cette dernière à la même adresse;
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…
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…
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(d) by mailing the document to the individual's last known
address, accompanied by an acknowledgement of receipt form in Form 128, if
the individual signs and returns the acknowledgement of receipt card or signs
a post office receipt;
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d) par envoi par la poste du document
à la dernière adresse connue de la personne, accompagnée d’une carte d’accusé
de réception selon la formule 128, si la personne signe et retourne la carte
d’accusé de réception;
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(e) by mailing the document by registered mail to the
individual's last known address, if the individual signs a post office receipt;
or
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e) par envoi par courrier recommandé
du document à la dernière adresse connue de la personne si la personne signe
le récépissé du bureau de poste;
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(f) in any other manner provided by an Act of Parliament
applicable to the proceeding.
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f) le mode prévu par la loi fédérale
applicable à l’instance.
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[Emphasis added]
[39]
Pursuant to rule 134, service on the solicitor
of a party is the equivalent of service on the individual in question:
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Acceptance
of service by solicitor
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Acceptation
de la signification par l’avocat
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134. Personal service of a document on a
party may be effected by the acceptance of service by the party's solicitor.
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134. La signification à personne d’un document à une partie peut être
effectuée auprès de son avocat si celui-ci en accepte la signification.
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[40]
The plaintiff’s statement of claim was served on
the solicitor for the defendant on August 28, 2014. However, he did not
complete an acceptance of service as required under rule 146(1)(d), which
states the following:
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Proof of service
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Preuve de signification
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146.
(1) Service of a document is proven by
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146. (1) La preuve de la signification
d’un document est établie :
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…
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…
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(d) if the service is effected under rule 134, an
acceptance of service that is signed and dated by the party’s solicitor.
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d) si le document a été signifié aux
termes de la règle 134, par une acceptation de signification datée et signée
par l’avocat.
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[41]
Additionally, in a letter dated October 10, 2014,
the solicitor for the defendant notified the Court that he had ceased representing
the defendant. Therefore, this solicitor never appeared before the Federal
Court.
[42]
As noted above, in addition to having served
this solicitor, the Minister sent a copy of his statement of claim to the defendant’s
home through a messenger service. The defendant’s wife acknowledged receipt of
the statement of claim. However, no additional copy was sent to the defendant’s
home by mail, contrary to the requirements under paragraph 128(1)(b) of
the Rules.
[43]
The subsequent pleadings, namely the motion for
default judgment and the motion for confidentiality, were served on February
13, 2015, at the defendant’s home, where the defendant’s wife acknowledged
receipt.
A.
Did the defendant “already participate in the proceeding”
within the meaning of rule 127(2)?
[44]
Pursuant to former section 18 of the CA, only
the defendant could request that his case be referred to the Federal Court, and
this was to be done within thirty days following receipt of the Minister’s
notice. In the absence of such a request, the Minister could proceed with
making the report for the Governor in Council. Section 18 of the CA provided
the following:
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Notice to person in respect of revocation
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Avis préalable à l’annulation
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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
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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 :
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(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
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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;
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(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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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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Nature of notice
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Nature de l’avis
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(2) The notice referred to in subsection (1) shall state that the
person in respect of whom the report is to be made may, within thirty days
after the day on which the notice is sent to him, request that the Minister
refer the case to the Court, and such notice is sufficient if it is sent by
registered mail to the person at his latest known address.
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(2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a
l’intéressé, dans les trente jours suivant sa date d’expédition, de demander
au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis
peut se faire par courrier recommandé envoyé à la dernière adresse connue de
l’intéressé.
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[Emphasis added]
[45]
Clearly, the defendant was aware that the
procedure to revoke his citizenship had been initiated by the Minister before
the Minister served his statement of claim. He had already taken positive
action in the procedure by exercising his right to request that the case be
referred to the Federal Court. He also retained the services of a solicitor,
who acknowledged receipt of the statement of claim in his name. I find that the
defendant had “already participated in the proceeding”
within the meaning of subsection 127(2) of the Rules, and that the plaintiff
was therefore not required to serve the statement of claim in person.
B.
Was the service of the statement of claim on the
defendant’s wife sufficient for the purposes of the case?
[46]
If this interpretation of rule 127(2) is inaccurate,
the Court is still authorized to validate the service as it took place pursuant
to rule 147, “if it is satisfied that the document came
to the notice of the person to be served or that it would have come to that
person’s notice except for the person’s avoidance of service.”
[47]
The plaintiff served a copy of the statement of
claim on the defendant’s wife, who resided at the defendant’s home, but did not
send an additional copy of the statement of claim to this address by mail.
[48]
Considering the circumstances, I am convinced
that the document came to the defendant’s notice or it would have come to his
notice had he not avoided service. He was clearly aware that the procedure to
revoke his citizenship had been initiated before the statement of claim was
filed. Moreover, sending an additional copy of the statement of claim by mail,
as provided under paragraph 128(1)(b) of the Rules, is more a requirement
as to form than of substance. I therefore validate the service as it was completed,
pursuant to rule 147.
C.
It is fair to proceed with this motion for
default judgment under rule 211?
[49]
If the interpretation of rules 127(2) and 147,
set out above, is inaccurate, the Court is still authorized to issue a
substitutional service order. When the personal service of a document “cannot practicably be effected”, subsection 136(1) of
the Rules confers on the Court the power to order substitutional service:
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Substituted
service or dispensing with service
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Ordonnance
de signification substitutive
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136. (1) Where service of a document that is
required to be served personally cannot practicably be effected, the Court
may order substitutional service or dispense with service.
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136. (1) Si la signification à personne d’un document est en pratique
impossible, la Cour peut rendre une ordonnance autorisant la signification
substitutive ou dispensant de la signification.
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[50]
In such circumstances, rule 211 provides the
following:
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Service pursuant to order for substitutional service
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Signification substitutive en vertu d’une ordonnance
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211.
Judgment shall not be given against a defendant who is in default where
service of the statement of claim was effected pursuant to an order for
substitutional service, unless the Court is satisfied that it is just to do
so having regard to all the circumstances.
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211. Lorsque la signification de la
déclaration a été faite en vertu d’une ordonnance de signification
substitutive, aucun jugement ne peut être rendu contre le défendeur en défaut
à moins que la Cour ne soit convaincue qu’il est équitable de le faire dans
les circonstances.
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[51]
In this case, if my interpretation of rules 127(2)
and 147 is inaccurate, I find that it is appropriate to dispense the plaintiff
from his obligation to serve the statement of claim on the defendant in person.
I also find that it is fair to render judgment against the defendant because he
was clearly aware of the proceeding before the declaration was submitted. If it
were otherwise, it would be all too easy for a defendant in a similar situation
to avoid having his citizenship revoked by making himself unavailable for the
purposes of the service of the pleadings in the case.
IV.
The evidence
[52]
The Minister submitted the affidavits of Jasmina
Stebelsky, Corporal Yves Gravelle, Médard Nduwamungu, Virginie Désilets,
François-Pierre Déry, Scott Strauss, Isabelle Nicolas, Svetlana Kritenko and a
witness whose identity shall remain confidential and whom I shall designate as
“ND-05.” Considering the possible repercussions
for this witness and certain other witnesses mentioned in the affidavits of
Corporal Gravelle and Mr. Nduwamungu, on March 12, 2015, I ordered that the
identity of all these individuals be declared confidential.
[53]
Ms. Stebelsky is an immigration officer and
attached to her affidavit are the refugee claim and applications for permanent
resident status and for Canadian citizenship submitted by the defendant [the immigration
applications].
[54]
Before the RPD, the defendant alleged the
following:
•
His name is Maurice Rubuga;
•
He was born on September 3, 1966, in Mukingo,
Ruhengeri, Rwanda;
•
His father’s name is Munyarubuga, his mother’s
name is Bavugabwose and his brothers are called Serubingo, Munyempanzi,
Rutanganya, Nkundakozera, Nduwayezu, Sebahigi and Nkurunziza;
•
From 1982 to 1988, he studied at Groupe scolaire
St-André in Kigali;
•
He earned a bachelor’s degree from the National
University of Rwanda [NUR] in 1990;
•
From 1990 to 1993, he worked as a teacher in
Rwankeri, in the Ruhengeri prefecture in Rwanda;
•
From 1993 to April 1994, he was the secretary
for the “Birunga maize Project” in the Nkuli
commune in Rwanda;
•
From July 1994 to September 1996, he was at the
Katale refugee camp in Zaire, then from September 1996 to April 1998, he
returned to Mukingo in Rwanda;
•
His wife, Agnès Mahoro, was allegedly killed in 1998
in Rwanda by members of the Rwandan Patriotic Front [RPF];
•
He left Rwanda on April 25, 1998, because he was
wanted and being persecuted by members of the RPF;
•
He was never a member of the Rwandan army; and
•
He never participated in the commission of a
crime against humanity.
[55]
In his application for permanent residence
presented in 1999, the defendant reiterated most of these points. He provided
the same information in support of his application for Canadian citizenship.
[56]
In her affidavit, Ms. Stebelsky stated that if
the defendant had told the truth regarding his identity and his origins in his refugee
claim and application for permanent resident status, a more thorough
investigation would have been conducted to determine whether he was eligible
since at the time, Canadian authorities wanted to prevent Canada from becoming
a haven for individuals who had committed war crimes or had violated human
rights in Rwanda. She also stated that if the information that the Royal
Canadian Mounted Police [RCMP] later discovered had been known at the time, the
defendant would probably have been excluded because of his participation in
human rights violations and would therefore not have been eligible for refugee
status. The rejection of his refugee claim would have made him ineligible for
permanent resident status, which would then have prevented him from obtaining
his Canadian citizenship.
[57]
One of the conditions for obtaining Canadian
citizenship is obtaining (and retaining) permanent resident status for a period
determined by the CA.
[58]
Corporal Gravelle and Mr. Nduwamungu [the
investigators] are investigators employed by the RCMP and the Crimes Against
Humanity and War Crimes Section of the Department of Justice, respectively.
Their affidavits describe the investigations involving the defendant. With
these affidavits, they enclosed many documents discovered during the
investigation as well as affidavits signed by witnesses they met with during
their investigation.
[59]
Each of the investigators also reported
information obtained during interviews with witnesses who did not sign an
affidavit. The transcripts of many of these meetings are enclosed with their
affidavits. The plaintiff provided recordings of these interviews to the Court.
[60]
Svetlana Kritenko, a Department of Justice
employee, provided a summary in her affidavit of the resources that would be
required to send two counsel from the Crimes Against Humanity and War Crimes
Section of the Department of Justice to Rwanda to obtain sworn statements from
these witnesses. Ms. Kritenko did not, however, explain why these witnesses did
not sign an affidavit at the time they were questioned by the investigators.
[61]
Mr. Nduwamungu also included a series of
documents with his affidavit that were submitted to the International Criminal
Tribunal for Rwanda [ICTR].
[62]
The information the investigators collected
directly or that was obtained through the affidavits enclosed with Mr.
Nduwamungu’s affidavit establish the following with regard to Maurice Rubuga:
•
No document confirms that a person named “Maurice Rubuga”, born in Mukingo, in the Ruhengeri
prefecture in Rwanda, attended the Groupe scolaire St-André in Kigali or the NUR;
•
No document confirms that a person named “Maurice Rubuga” was employed as a teacher from 1990 to
1993 or contributed to the Rwandan Social Security Board [RSSB] during this
period; and
•
Many documents indicate that a person named “Fulgence Munyengango” was born in 1965 in the
Ruhengeri prefecture to a father called “Munyarubuga”
and a mother called “Bavugabwose”. These are the same names the defendant
provided in support of his immigration applications.
[63]
Many individuals questioned by Corporal Gravelle
indicated that “Fulgence Munyengango” changed
his name to “Gervais Ndahayo” after he failed
the high school entrance exam. These witnesses also indicated that changing
one’s name was a common technique used by young Rwandans so they could take the
entrance exam again the following year, using a pseudonym.
[64]
The investigators and other informants who gave
sworn statements provided evidence that establishes the following:
•
Gervais Ndahayo attended the Groupe scolaire
Saint-André in Kigali, claiming to have been born in 1966 rather than 1965, the
year Fulgence Munyengango was born;
•
The high school and university transcripts
provided by the defendant in support of his applications for permanent resident
status and citizenship were forgeries (moreover, the defendant gave himself a better
average than the one he actually earned);
•
Gervais Ndahayo attended NUR, but left after his
first year, having failed; and
•
Gervais Ndahayo made contributions to the RSSB from
1990 to 1993, when he was a second lieutenant with the FAR.
[65]
Mr. Nduwamungu attached a copy of a photo of Gervais
Ndahayo from his student records, found in the NUR archives, to his affidavit.
[66]
The documents submitted to the ICTR in Prosecutor
v Ephrem Setako, ICTR-04-81 [Setako], enclosed with Mr. Nduwamungu’s
affidavit, establish that Gervais Ndahayo was an officer in the FAR from 1990 to
March 1994, and he was second lieutenant and platoon chief of the 2nd company
of the Ruhungeri Commando Battalion at Camp Mukamira, located near the communes
of Mukingo and Nkuli.
[67]
Scott Strauss, an expert witness who has
published many documents on the Rwandan genocide, provided an opinion that
supports the authenticity of these documents, and testified that the FAR members
at Camp Mukamira played an active role in the organization and perpetration of
genocide. They were allegedly involved in training members of the Interahamwe
militia, which played a key role in perpetrating the massacre of the
region’s Tutsis.
[68]
Witnesses who were questioned by investigators
but did not sign an affidavit, for whom transcripts of their testimony were
submitted as attachments to Corporal Gravelle’s affidavit, indicated that the defendant
was assigned to Camp Mukamira during the Rwandan genocide and that he was
involved in training the members of the Interahamwe militia. The defendant
allegedly congratulated these militia members after the first day of massacres perpetrated
in the region, during which hundreds of civilians were killed.
[69]
Witness ND-05 stated in his affidavit that he
went to high school with Gervais Ndahayo and confirmed that this name
corresponded to the photo found in the immigration record of “Maurice Rubuga.” Virginie Désilets, deponent and employee
of the Department of Justice, corroborated ND-05’s identification of Gervais
Ndahayo, having participated in the photo identification session.
[70]
François-Pierre Déry, expert witness in facial
comparisons, compared the photo of Gervais Ndahayo taken from his NUR file and
photos of “Maurice Rubuga” retained by
Citizenship and Immigration Canada and Passport Canada in their files on Mr.
Rubuga. Mr. Déry was of the opinion that it was highly probable that these
photos were of the same individual, thereby corroborating the identification
made by ND-05.
V.
Burden and standard of proof
[71]
The case law regarding relevant former provisions
of the CA establishes that a reference under former section 18 of the CA was a
civil rather than a criminal proceeding. It is therefore the Minister’s burden
to establish on a balance of probabilities that the alleged facts took place (Canada
(Minister of Citizenship and Immigration) v Halindintwali, 2015 FC 390 at
para 32 [Halindintwali]).
[72]
The case law also establishes that in such a
case, the Minister was not required to prove that false representation, fraud,
or knowing concealment of material circumstances would necessarily have led to
the rejection of the application for permanent residence, but merely that the
false representation, fraud or knowing concealment of material circumstances
had the effect of foreclosing or averting further inquiries (Canada (Minister
of Manpower and Immigration) v Brooks, [1974] S.C.R. 850 at p 873, [1973] SCJ
No 112 (QL); Canada (Minister of Citizenship and Immigration) v Rogan,
2011 FC 1007 at para. 31, 396 FTR 47; Halindintwali, above, at para 35).
[73]
When the Court is assessing the material
character of the concealed facts, it must determine “the
significance for purposes of the decision in question of the information not
disclosed” (Canada (Minister of Citizenship and Immigration) v
Odynsky, 2001 FCT 138 at para 156, [2001] FCJ No 286 (QL) [Odynsky]).
In order to find that citizenship was obtained by an individual “knowingly concealing material circumstances” within
the meaning of former section 10 of the CA, “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).
[74]
Moreover, the Minister had to establish on a
balance of probabilities that the defendant acted intentionally by concealing
material circumstances and making false representations (Canada (Minister of
Citizenship and Immigration) v Savic, 2014 FC 523 at paras 66-76, [2014] FCJ
No 562 (QL)).
[75]
This case law was essentially codified in the
new subsection 10.1(4) of the CA, which sets out the following requirement
regarding proof:
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Proof
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Preuve
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(4) For the
purposes of subsection (1), the Minister need prove only that the person has
obtained, retained, renounced or resumed his or her citizenship by false
representation or fraud or by knowingly concealing material circumstances.
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(4) Pour
l’application du paragraphe (1), il suffit au ministre de prouver que
l’acquisition, la conservation ou la répudiation de la citoyenneté d’une
personne ou sa réintégration dans celle-ci est intervenue par fraude ou au
moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits
essentiels.
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[76]
I feel that there is no reason to diverge from
the case law on subsections 10(1) and 18(1) of the former CA when the
interpretation of the new provisions at section 10.1 of the CA is involved.
Therefore, to establish that an individual has obtained citizenship by false
representation or by knowingly concealing material circumstances with respect
to a fact described in section 34, 35 or 37 of the IRPA (other than a fact also
described in paragraph 36(1)(a) or (b) or 36(2)(a) or (b)
of the IRPA), the Minister must establish on a balance of probabilities that
the false representation, fraud or knowing concealment was with regard to a
fact described in the sections of the IRPA noted above. He must also show that
the defendant acted deliberately. Lastly, he must show that if the true
information had been known, a more thorough investigation would have been
conducted by the Canadian authorities to determine whether the individual was
excluded under article 34, 35, or 37 of the IRPA.
[77]
The burden of proving the above-noted elements is
not lessened in a motion for default judgment. In such a proceeding, every allegation
is treated as denied and the onus is on the plaintiff to prove his claims (Halindintwali,
above, at para 34; Teavana Corporation v Teayama Inc., 2014 FC 372 at para
4, [2014] FCJ No. 393; Louis Vuitton Malletier S.A. v Lin, 2007 FC 1179
at para 4, [2007] FCJ No. 1528 (QL)).
[78]
An issue arises regarding the admissibility of
the transcripts of the interviews conducted with witnesses who did not sign
affidavits, which were filed before this Court as attachments to Corporal
Gravelle’s affidavit. It must be determined whether the Minister may use these
transcripts to meet his burden of proof, despite the fact they are considered
hearsay.
[79]
The Minister noted that evidence provided in
support of a default judgment must be in affidavit form, unless there is a
Court order to the contrary, pursuant to subsection 210(3) of the Rules.
Moreover, under rule 81, affidavits may contain statements on information and
belief:
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Contents of affidavits
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Contenu
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81. (1)
Affidavits shall be confined to facts within the deponent’s personal
knowledge except on motions, other than motions for summary judgment or
summary trial, in which statements as to the deponent’s belief, with the
grounds for it, may be included.
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81. (1) Les affidavits se limitent aux
faits dont le déclarant a une connaissance personnelle, sauf s’ils sont
présentés à l’appui d’une requête – autre qu’une requête en jugement sommaire
ou en procès sommaire – auquel cas ils peuvent contenir des déclarations
fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
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Affidavits on belief
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Poids de l’affidavit
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(2) Where an affidavit is made on belief, an adverse inference may
be drawn from the failure of a party to provide evidence of persons having
personal knowledge of material facts.
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(2) Lorsqu’un affidavit contient des déclarations fondées sur ce
que croit le déclarant, le fait de ne pas offrir le témoignage de personnes
ayant une connaissance personnelle des faits substantiels peut donner lieu à
des conclusions défavorables.
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[80]
Therefore, under Rules 210(3) and 81(1), hearsay
is admissible. However, the Court is not required to grant it significant
weight (or even minimal weight) as provided under rule 81(2).
[81]
This Court has often found that when a plaintiff
in a default proceeding is unable to show why the hearsay is reliable and
necessary, this hearsay will have little weight in the assessment of the
evidence. The affidavit containing the hearsay must explain why the best
evidence is not available unless this is otherwise apparent. However, failure to
provide the best evidence has an effect on the probative value of the affidavit
rather than on its admissibility (Stephens v Canada (Minister of Citizenship
and Immigration), 2013 FC 609 at para 30, [2013] FCJ No. 639 (QL); Canada
(Minister of Citizenship and Immigration) v Huntley, 2010 FC 1175 at para
270, 375 FTR 250; Tataskweyak Cree Nation v Sinclair, 2007 FC 1107 at
para 26, 320 FTR 1).
[82]
In his affidavit, Corporal Gravelle did not
offer any explanation as to why the witnesses who did not sign an affidavit
were unable to do so.
[83]
Similarly, Svetlana Kritenko did not explain why
the witnesses did not sign an affidavit at the time they were questioned by the
investigators. She merely provided a summary of the costs that would be
involved to send two counsel to Rwanda to obtain these sworn statements.
[84]
In his memorandum, the plaintiff attempts to
establish that obtaining sworn statements from these witnesses would have been
an excessively costly burden in an uncontested proceeding. The same argument
was rejected by Justice Marie-Josée Bédard in Halindintwali, which is
similar in many ways to this case. The fact it is a default proceeding does not
in any way reduce the Court’s responsibility, the burden on the Minister or the
need to present reliable evidence to support the allegations (Halindintwali,
above, at paras 109-111).
[85]
I will take the transcripts into consideration
to the extent that they help establish that the defendant used the names
Fulgence Munyengango and Gervais Ndahayo in Rwanda, rather than “Maurice Rubuga,” because these facts are corroborated
by the documentary evidence submitted by the plaintiff and by the sworn
testimony of ND-05.
[86]
I will not grant any probative value to the
transcripts regarding the other facts they relate. These facts are extremely
prejudicial to the defendant and are not corroborated by any other evidence
entered in the record. Additionally, the plaintiff did not establish why it was
necessary to proceed in such a manner rather than obtaining sworn statements at
the time the interviews took place.
[87]
As indicated below, the Minister nonetheless met
his burden of proof with the other evidence in support of his motion, in
particular the information in the affidavits of deponents who had direct
knowledge and the documents attached to these affidavits as exhibits. When the
deponents themselves obtained the documents attached to their affidavits, it is
not considered hearsay evidence.
[88]
With regard to the documents from the ICTR
records, attached to Mr. Nduwamungu’s affidavit, this Court has
consistently held that documents from that tribunal are admissible as evidence
under the authority of section 23 of the Canada Evidence Act, RSC 1985,
c C-5, even if they are from an international tribunal and not from a foreign
country (Halindintwali at para. 95). Moreover, these documents are
admissible under the authority of article 2822 of the Civil Code of Québec,
LQ-1991, c 64, and section 40 of the Canada Evidence Act (Halindintwali,
above, at para. 96).
VI.
Analysis of the evidence
[89]
The evidence to which I granted probative value
establishes that, on a balance of probabilities, much of the information
provided by the defendant regarding his name, marital status, education, prior
employment and places of residence was false. In light of these facts, it is
clear that the defendant acted deliberately.
A.
Identity
[90]
The evidence collected during the investigation
establishes that, on a balance of probabilities, the defendant did not use the
name Maurice Rubuga in Rwanda.
The defendant did not use
the name Maurice Rubuga in Rwanda
[91]
The following evidence establishes that the defendant
never used the name Maurice Rubuga in Rwanda and that no person with this name
attended the Groupe scolaire St‑André or NUR:
•
In his affidavit, Corporal Gravelle indicated
that during a visit to Rwanda in 2007, he could find no documents in the Groupe
scolaire St-André archives under the name Maurice Rubuga, born September 3,
1966 in Mukingo, Ruhengeri. A similar search in the NUR archives did not uncover
any documents in Maurice Rubuga’s name (Corporal Gravelle’s Affidavit at paras
24, 27);
•
Similarly, Corporal Gravelle did not find any
documents or information on Maurice Rubuga in the documents at the Collège
Adventiste de Rwankeri, where Mr. Rubuga allegedly taught from 1990 to 1993, or
in the Rwanda Social Security Board archives (Corporal Gravelle’s affidavit at
paras 30-32);
•
Additionally, the documents obtained from the RSSB
indicate that no person with the name Maurice Rubuga, born September 3, 1966,
in Mukingo, Ruhengeri, or Fulgence Munyengango, made any contributions to the RSSB
(Mr. Nduwamungu’s affidavit at paras 20-21);
•
Mr. Nduwamungu’s searches at the Vital
Statistics Office in the Busogo sector did not reveal any documents in the name
of Maurice Rubuga, born September 3, 1966 (Mr. Nduwamungu’s affidavit at para
7).
The defendant used the
names Fulgence Munyengango and Gervais Ndahayo in Rwanda
[92]
The evidence presented by the Minister indicates
that the defendant instead used the names Fulgence Munyengango and Gervais
Ndahayo in Rwanda:
•
Mr. Nduwamungu’s searches at the Vital
Statistics Office in the Busogo sector resulted in the discovery of an excerpt
from the population registry indicating that an individual named Munyengango, whose
father’s and mother’s names are identical to those the defendant indicated in
his application for refugee status, was born in 1965 in the Mucaca cell,
Mukingo commune (Mr. Nduwamungu’s affidavit, at para 7);
•
The plaintiff submitted the personal census
record of J.D. Serubingo, whom the defendant declared as his brother in his
refugee claim. This record indicates that J.D. Serubingo’s father was Munyarubuga
and his mother was Bavugabwose, the same as the parents the defendant declared
(Mr. Nduwamungu’ affidavit at paras 10-11; J. Stebelsky’s affidavit
at para 8; Plaintiff’s Record at p 636 [PR]);
•
Corporal Gravelle’s search of the Groupe
scolaire St-André’s archives led him to find the name of Gervais Ndahayo, born
in Mukingo in 1966, who obtained his diploma on June 23, 1998, on the list of
students in fifth and sixth grade in 1986-1987 and 1987-1988 (Corporal
Gravelle’s affidavit at para 41);
•
Similarly, Corporal Gravelle discovered a file
in the name of Gervais Ndahayo, born in 1966 in Mucaca in the Mukingo commune, in
the NUR archives. The file included a photo of Gervais Ndahayo and indicated
that the father of Gervais Ndahayo was Munyarubuga and his mother was
Bavugabwose. Gervais Ndahayo failed his first school year, which explains why
Mr. Gravelle did not find his name on the list of graduates (Corporal
Gravelle’s affidavit at para 42);
•
The expert witness François-Pierre Déry, senior
identity documents analyst and facial comparison specialist, indicated in his
affidavit that in October 2013 he conducted a facial comparison analysis to
determine whether Maurice Rubuga was the same individual as Gervais Ndahayo. He
compared the photo from the Rwandan school record of Gervais Ndahayo and those
from the Citizenship and Immigration Canada and Passport Canada files of Maurice
Rubuga. He found that there is a high probability that these photos were of the
same individual (F.-P. Déry’s affidavit at paras 5-6);
•
Witness ND-05, in a sworn affidavit, declared
that he knew the defendant in Rwanda, and crossed paths with him in Ottawa.
After seeing a photo of Maurice Rubuga, ND-05 declared that it was Gervais
Ndahayo (ND-05’s affidavit at paras 6, 8).
B.
Marital status
[93]
The defendant falsely claimed that he was a
widower after his wife, Agnès Mahoro, died in 1998. The evidence submitted by
the plaintiff establishes that, in fact, the defendant is married to Catherine
Mukakayange:
•
The marriage certificate from Kenya establishes
that the defendant married Ms. Mukakayange on August 19, 1995, in Nairobi
(J. Stebelsky’s affidavit at para 29; PR at 93);
•
The personal information form of Catherine
Mukakayange, the defendant’s wife, indicates that Gervais Ndahayo is her
husband (see: Question 15) (J. Stebelsky’s affidavit at para 28; PR at p 78);
•
Moreover, the birth certificate of her daughter
Jeneffer, born in Canada on April 11, 1997, establishes that her family name is
Ndahayo (J. Stebelsky’s affidavit at para 30; PR at p 95).
C.
Education
[94]
The defendant falsely declared that he earned a high
school diploma from the Groupe Scolaire St-André under the name Maurice Rubuga when
in reality, he earned this diploma under the name Gervais Ndahayo.
[95]
The plaintiff established that the copy of the high
school diploma the defendant provided in support of his refugee claim was a
forgery. The two diplomas have identical dates of issue and the same serial
number. Despite this, the signatures of the panel members on each of the
diplomas are different. Additionally, the date and place of issuance were typed
with a typewriter on Gervais Ndahayo’s diploma, whereas the information is handwritten
on Maurice Rubuga’s false diploma. Lastly, the defendant gave himself a higher
average than that indicated on Gervais Ndahayo’s genuine diploma, going from “Satisfactory (64.9%)” to “Honours
(75.62%)” (J. Stebelsky’s affidavit at para 5; M. Nduwamungu’s
affidavit at para 15; PR at pp 20, 667).
[96]
Moreover, the defendant falsely alleged that he
earned a bachelor’s degree in African Arts, Languages and Literature from the
NUR as Maurice Rubuga, when in reality, he studied in this university program
for only one year as Gervais Ndahayo.
[97]
A comparison of the official NUR transcript
provided by the defendant in support of his refugee claim and that of Gervais
Ndahayo allows for the conclusion that the transcript the defendant submitted
is a forgery. Slight differences in the number of rows in the transcript’s
table and the format of the date at the bottom of the page allow for a
distinction to be made between the genuine document and the forgery. (J.
Stebelsky’s affidavit at para 5; N. Nduwamungu’s affidavit at para 15; PR at pp
24, 670).
[98]
The same can be said for the copy of the
university diploma the defendant provided in support of his refugee claim.
Gervais Ndahayo did not earn a university diploma, having only completed one
year at NUR, but a comparison with the other diploma in the plaintiff’s
evidentiary record leads to the conclusion that the defendant submitted a forgery.
The layout of the text on the forged diploma differs considerably from the
genuine diploma. Moreover, the signatures of the NUR Rector and the Chair of
the Deliberation Panel are different on each diploma, although they both have
the same delivery date (J. Stebelsky’s affidavit at para 5; N. Nduwamungu’s
affidavit at para 15; PR at pp 22, 646).
[99]
The above-noted evidence clearly establishes
that the defendant lied about his education.
D.
Employment history
[100] The defendant falsely claimed that he taught in Rwankeri from 1990 to
1993. As noted above, the searches conducted in this investigation did not reveal
any documents or information that establish the defendant was a teacher during
this period or that he made any contributions to the RSSB.
[101] In his refugee claim, the defendant answered “no” to question 21 of the Notification of Claim to be
a Convention Refugee (“In periods of either peace or
war, have you ever been involved in the commission of a war crime or crime
against humanity?”) (PR at p 12). He gave the same answer in his
application for permanent residence (Question L(8), PR at p 58). In his application
for Canadian citizenship, the defendant indicated that the section “Prohibitions under the Citizenship Act” did not apply
to him (Section 8, PR at p 68).
[102] Similarly, in response to Question I (“Organizations
to which you have belonged”) of his application for permanent residence
(PR at p 57), the defendant did not indicate he had been a member of the FAR.
[103] The evidence establishes that the defendant lied by indicating he
was never a member of the FAR. Two documents called [Translation] “Situation of Officers
in the Rwandan Army” were published by Rwanda’s Ministry of Defence on
January 1, 1993, and March 5, 1994, and later submitted before the ICTR during
the Setako case. These documents indicate that Gervais Ndahayo was a platoon
chief at the second lieutenant rank with the 2nd Company of the Commando
Ruhengeri Battalion, at Camp Mukamira in January 1993 and March 1994 (M.
Nduwamungu’s affidavit at para 26; PR at pp 886 and 924).
[104] Additionally, a record of contributions made to the RSSB by Gervais
Ndahayo, born in 1966, whose father and mother were, respectively, Munyarubuga and
Bavugabwose, shows that Gervais Ndahayo made contributions from 1991 to the end
of 1993 as a member of the FAR (M. Nduwamungu’s affidavit at para 22; PR at
p 810).
E.
Place of Residence
[105] The defendant falsely claimed to have lived at the Katale refugee
camp in Zaire from July 1994 to September 1996. His marriage certificate dated
August 19, 1995, shows he was in Kenya in 1995 (J. Stebelsky’s affidavit at para
29; PR at p 93).
VII.
Conclusion
[106] In this case, it was established on a balance of probabilities that
the defendant made many false representations about his identity, marital
status, education and employment history, and that he hid the fact he was a
second lieutenant with the FAR.
[107] The fact these false representations affect almost all of the
information provided in the defendant’s refugee claim and application for
permanent resident status leads to the conclusion that the defendant acted
knowingly.
[108] The defendant’s false representations, in particular those denying
any past membership in the FAR, were directly relevant to the issue of his
eligibility as a Convention refugee and the issue of his admissibility for
permanent residence pursuant to the Immigration Act then in force. This
led Canadian authorities to not conduct further inquiries into the defendant’s involvement
in the organization and perpetration of the Rwandan genocide, thereby severely
limiting the ability of Canadian authorities to make a decision on the
relevance of clause 1F(a) of the Convention and paragraph 19(1)(j) of
the Immigration Act.
[109] I find that these false representations were with regard to material
circumstances, and furthermore, that the defendant’s subsequent acquisition of
Canadian citizenship was directly dependent upon his admission as a Convention
refugee.
[110] As a result, I find that Maurice Rubuga acquired Canadian
citizenship by false representation or fraud or by knowingly concealing
material circumstances with regard to facts described in section 35 of the
IRPA. As a result, the declaration the Minister is seeking shall be issued,
which will have the effect of revoking Maurice Rubuga’s Canadian citizenship
pursuant to paragraph 10.1(3)(a) of the CA.
[111] The Minister did not ask the Court to certify that a serious
question of general importance is involved under the new section 10.7 of the
CA. Therefore no question arises in this case.
[112] The Minister asked the Court to order the defendant to pay costs
related to the default judgment. I deem it appropriate to order the defendant
to pay the plaintiff $2,000, an amount that corresponds to costs that would be
set according to the mid-point of Column III of Tariff B, under the Rules.
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