Canada (Minister of Citizenship and Immigration) v. Dao, 2004 FC 712

Date: 20040618

Docket: T-2225-01

Citation: 2004 FC 712

Ottawa, Ontario, this 18^th day of May 2004                         

Present:           The Honourable Madam Justice Heneghan                                    

BETWEEN:                                                         

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Plaintiff

                                                                           and

                                                                THAI VAN DAO

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                On October 20, 2000, the Minister of Citizenship and Immigration (the "Minister") served a notice on Mr. Thai Van Dao (the "Defendant"), advising of the intention to make a report to the Governor-in-Council pursuant to section 10(1) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended (the "Citizenship Act" or "Act"), recommending that the Defendant's Canadian citizenship be revoked. The Defendant requested that the matter be referred to this Court, pursuant to section 18 of the Act.

[2]                Accordingly, on December 18, 2001, a Statement of Claim was issued in which the Minister seeks a declaration, pursuant to section 10(1) and section 18(1)(b) of the Act, that the Defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

THE EVIDENCE

[3]                The Minister's evidence consisted of a Request to Admit and the testimony of Ms. Althea Williams. The Request to Admit was served and filed on May 21, 2003, pursuant to the Federal Court Rules, 1998, SOR/98-106, as amended, (the "Rules") and states the following facts:

1.              On June 14, 1989 the defendant was granted permanent residence in Canada;

2.              On July 15, 1993, the defendant completed an application for Canadian citizenship in Toronto;

3.              On April 1, 1994 an information was laid in Naniamo [sic] B.C. and provided to the defendant charging him with two indictable offences under an Act of Parliament, namely possession for the purpose of trafficking in the narcotics cocaine and heroin. On April 5, 1994, an amended information was laid and provided to the defendant on the same charges;

4.              On April 5, 1994 the defendant appeared in provincial court in Naniamo [sic] B.C. on the two narcotics charges where he was granted interim release;

5.              On May 2, 1994 the defendant appeared in provincial court in Naniamo [sic] B.C. seeking an amendment of a term of his recognizance, which was denied;

6.              On May 3, 1994 the defendant was interviewed by a citizenship judge in Toronto and that judge approved the defendant's citizenship application; and

7.              On May 11, 1994 the defendant took the oath of citizenship and was granted Canadian citizenship.

[4]                The Request to Admit also refers to the following documents:

1.              A copy of the Immigrant Visa and Record of Landing, dated June 14, 1989 concerning the defendant;

2.              A copy of the Application for Citizenship, dated July 15, 1993 concerning the defendant;

3.              A copy of the police report concerning the defendant's arrest and charge on March 31, 1994 in Naniamo [sic], B.C.;

4.              A copy of the Information 31456, dated April 1, 1994 and Amended Information 31456C, dated April 5, 1994 concerning the defendant;

5.              A copy of the Record of Proceedings and Endorsement of Information for court file 31456 and court file 31456C;

6.              A copy of the Recognizance of Bail, dated April 5, 1994 concerning the defendant;

7.              A copy of the Notice to the Minister of the Decision of the Citizenship Judge, dated May 3, 1994 concerning the defendant;

and

8.              A copy of the Oath or Affirmation of Citizenship dated May 11, 1994 concerning the defendant.

[5]                The Defendant did not respond to the Request to Admit but subsequently, both in his Pre-Trial Conference Memorandum and a letter dated April 27, 2004 addressed to the Registry, indicated that he disputed his signature on one of the documents, that is the "Notice to the Minister of the Decision of the Citizenship Judge" dated May 3, 1994. At the trial, counsel for the Defendant acknowledged that no response to the Request to Admit was made in conformity with the Rules.

[6]                Rules 255 and 286 provide as follows:

[7]                Following the submissions of counsel for both parties as to the effect of the Request to Admit in the absence of a response from the Defendant as provided for in Rule 256, I concluded that the facts and authenticity of the documents referred to in the Plaintiff's Request to Admit would be deemed to be admitted, in accordance with Rule 256 and the decision in Edison v. Canada (Minister of National Revenue) (2000), 189 F.T.R. 76. Further, I note that although the present proceeding is a reference pursuant to section 18 of the Citizenship Act, Rule 169(1) of the Rules provides that it shall be governed by Part 4 of those Rules. Rules 255 and 286 are found in Part 4 and, in my opinion, the Request to Admit was available to the Plaintiff in this proceeding. The documents were subsequently entered as the Minister's book of exhibits.

[8]                The Minister produced one witness, Ms. Althea Williams, currently employed by the Department of Citizenship and Immigration as Manager of Language and Innovation. In 1993, Ms. Williams was a Citizenship Officer with the Department in Toronto, Ontario, a position that she held for five years. She testified about her usual practice in processing applications for Canadian citizenship during the five year period when she was employed in that position.

[9]                As a general practice, she reviewed the application form with an applicant at the initial interview and checked the supporting documents. She reviewed the several questions on the application for citizenship and satisfied herself, after assessing a person's level of comprehension, that an applicant understood the questions asked and the information sought in the application form.

[10]            Ms. Williams testified that she conducted her interviews in English over a 10 to 15 minute period. If in doubt as to the level of comprehension of an applicant, as to any part of the application, she would direct the person to seek the assistance of an interpreter or of a family member.

[11]            Following a review of the application form at an interview, an applicant's file would be forwarded to a Citizenship Judge. Ms. Williams had limited experience of what would occur at an interview between an applicant and a Citizenship Judge; however, she testified that once a Citizenship Judge had approved an application, the file would be returned to a Citizenship Officer for further review and analysis, to determine that the statutory requirements for the grant of citizenship had been met and that there were no notations on the file to indicate any change in an applicant's status relative to criminal activity or charges.

[12]            Ms. Williams identified the Defendant's application for citizenship, one of the documents tendered as exhibits by the Minister pursuant to the Request to Admit. The application was dated July 15, 1993 and Ms. Williams testified that she recognized the document by her initials which appear on it, in four places, as well as by her signature at the end of the application where she witnessed the signature of the Defendant. Ms. Williams was unable to specifically recall the Defendant or the circumstances of his interview. However, she positively identified the application form by her initials.

[13]            Ms. Williams related her usual practices in assessing an application for citizenship, in an interview context, to the Defendant's application. She commented on the absence of any notations to indicate any concerns on her part as to the Defendant's understanding of the contents of his application, including any concern with his comprehension of the warnings at item 15 and the specific inquiries at item 16.

[14]            Item 15, also identified by the letter "G", is entitled "Warning" and provides as follows:

[15]            Item 16, at letter "H", is entitled "Prohibitions" and reads as follows:

You need not disclose a finding of guilt in respect of an offence dealt with under the Young Offenders Act if all dispositions related to that offence have been completed.

16. IN THE PAST 4 YEARS, have you been, or ARE YOU CURRENTLY, under any Canadian law:

   No         Yes                                                          No    Yes

a) under a probation order?    “         “              b) a paroled inmate?             “       “

                No            Yes

c) confined in, or an inmate of, a penitentiary, jail, reformatory or prison?                “             “

_______________________________________________________________________________

IN THE PAST 3 YEARS, under any Canadian law, have you been:

No            Yes

d) convicted of an indictable offence for which              “              “

you have not been granted a pardon?

e) convicted of an offence under the Citizenship            No            Yes

Act?                                                                                        “              “

______________________________________________________________________________

ARE YOU CURRENTLY charged with, on trial for, subject to or party to an appeal relating to:

f) an indictable offence under            No        Yes              g) an offence under             No            Yes

any Act of Parliament                           “          “                 the Citizenship Act               “              “

______________________________________________________________________________

ARE YOU CURRENTLY, under the Criminal Code of Canada, under investigation for, charged with, on trial for, subject to or party to an appeal relating to:

No            Yes

h) a war crime or a crime against humanity?                                     “              “

______________________________________________________________________________

HAVE YOU BEEN, under the Criminal Code of Canada:

No            Yes

I) convicted of a war crime or a crime against humanity?               “              “

______________________________________________________________________________

If yes to any of the above [a) to I)], give details of the date(s), place(s) of charge(s), conviction(s) and/or other disposition(s).

[16]            In this case, all these inquiries were marked "No". Ms. Williams recorded the following notation at the end of Item 16:

Questions 16(a) to (I) verbally reviewed

The initials of Ms. Williams and the Defendant follow this notation.

[17]            Ms. Williams testified that it was not her practice to read out the provisions of Item 16 verbatim to an applicant and she assumed that she did not do so in relation to the Defendant. Rather, she habitually reviewed the provisions in "simple" language, for example by asking if the person concerned had had any involvement with criminal charges and gave the following examples:

THE WITNESS: Yes. We go through every question basically, but some of them you don't really need to paraphrase. For instance, I would say, "In the past four years have you been or are you now", instead of "currently", "under probation? Are you under parole? Are you in jail or in prison?" - - things like that. Some of these don't need paraphrasing. "If you are currently convicted" is really the only phrase you can use. It is just trying to say it in a more simplified way, not necessarily changing the words in all cases.

[18]            Ms. Williams also gave evidence about her general practice to explain, again in "ordinary" language, the necessity for an applicant to advise representatives of the Department of Citizenship and Immigration of any future change in the person's status relative to any of the matters described at Item 16. She referred to Item 18 which provides as follows:

18. I am aware that if under any Canadian law I am charged with an indictable offence or put on probation before I take the oath of citizenship I must notify a citizenship official.

I understand the content of this application and the statements made herein are true and correct.

Ms. Williams said that she was satisfied that the Defendant understood what she was saying and what his obligations were. She testified that since the Defendant had signed the document at Item 18 before attending for his interview, she crossed out his name and requested him to re-sign in her presence. She then signed her name in attestation.

[19]            When cross-examined about her practice of reviewing Items 15 and 18 in "simple language", rather than reading out these questions verbatim, Ms. Williams said that it was unnecessary to read out the questions in English. If an applicant is clearly fluent in English, he or she will understand the written text. She followed the practice that she described in order to satisfy herself that a person did, in fact, understand the requirements identified on the application form.

[20]            She assessed his understanding on the basis of her interaction with him during the interview and again, referred to her practice of making a notation if she had concerns about a person's comprehension. The absence of any notation on the Defendant's application form means that she had no concerns about his understanding of the form or the need to advise a Citizenship Officer or other representative of the Department of Citizenship and Immigration of any change in his status in relation to criminal proceedings.

[21]            The Defendant did not testify. His participation in the trial consisted of the cross-examination and closing submissions made by his counsel. He was present during the trial and was accompanied by an interpreter.

FINDINGS AND ANALYSIS

[22]            The sole issue arising here is whether the Plaintiff has established that the Defendant obtained Canadian citizenship by false representation, fraud or by knowingly concealing material circumstances.

[23]            The relevant statutory provisions are sections 10, 18 and 22(1) of the Citizenship Act, as follows:

[24]            The facts and documentary evidence submitted by the Plaintiff, pursuant to Rules 255 and 256, establish that the Defendant submitted an application for citizenship on July 15, 1994, that he attended an interview with a citizenship judge on May 3, 1994 and that he attended a formal citizenship ceremony in Toronto on May 11, 1994.

[25]            The documentary evidence also shows that on April 1, 1994, the Defendant was arrested and charged with two offences contrary to the Narcotic Control Act, R.S.C. 1985, c. -1. He appeared in the Provincial Court of British Columbia on April 5, 1994 and was released from arrest upon posting cash bail and entering a recognizance with conditions, including the condition that he maintain a curfew, at his residence, from 9:00 p.m. to 7:00 a.m. The documentary evidence includes a Record of Proceedings before the Provincial Court that shows an application on behalf of the Defendant, on May 2, 1994, seeking an amendment to the term of the recognizance, specifically in relation to the curfew. That application was dismissed.

[26]            The history of the proceedings before the Provincial Court of British Columbia in May 1994 is relevant to this reference in light of the allegation that the Defendant obtained Canadian citizenship by concealing material circumstances, that is the criminal charges that were laid against him after he submitted his application for citizenship and prior to his attendance for an interview with a Citizenship Judge and participation in the formal ceremony where he took the oath of citizenship.

[27]            A reference pursuant to the Citizenship Act, is a civil proceeding; see Canada (Minister of Citizenship and Immigration) v. Tobiass et al, [1997] 3 S.C.R. 391. The applicable burden of proof is the civil standard based on the balance of probabilities but the evidence is to be carefully scrutinized having regard to the serious allegations to be established by the proof that is tendered; see Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1; Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37; and Canada (Minister of Citizenship and Immigration) v. Schneeburger (2003) F.T.R. 85.

[28]            In Canada (Minister of Citizenship and Immigration) v. Wysocki, [2003] F.C.J. No. 1505, Justice Layden-Stevenson commented on the meaning of "knowingly concealed material circumstances" in sections 10 and 18 of the Act, at paragraph 16 as follows:

The phrase "knowingly concealing material circumstances" in sections 10 and 18 [of the Citizenship Act] requires that the court find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he know [sic] or did not know that they were material, with the intent of misleading the decision-maker: Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1 (T.D.). A technical transgression of the Act will not suffice because innocent misrepresentations are not to result in the revocation of citizenship: Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155 (T.D.). 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: Odynsky, supra

[29]            On the basis of the evidence before me, I am satisfied that the Plaintiff has shown, on the balance of probabilities, that when the Defendant attended on July 15, 1993, for his interview with Citizenship Officer Williams, he was made aware of the requirements to inform the Department of Citizenship and Immigration if he became the subject of a charge of an indictable offence under any Act of Parliament. I find the evidence of Ms. Williams sufficient and persuasive in that regard. She is an impartial witness, with no personal interest in the outcome of this reference and she testified in a credible, forthright manner.

[30]            I also find that the absence of any notation on the Defendant's application for citizenship is probative evidence that supports Ms. Williams' assessment of the Defendant's level of understanding of that application form and of the obligations that it imposed on him to disclose, prior to obtaining citizenship, if he was subject to a charge in respect of the matters identified in section 18 of the Act.

[31]            I also find that subsequent to July 15, 1993 and before May 3, 1994, when the Defendant appeared before a Citizenship Judge in Toronto, he was charged with two offences pursuant to the Narcotic Control Act, supra, specifically two counts of possession of a narcotic for the purpose of trafficking contrary to section 4(2) of that Act. That section creates an indictable offence.

[32]            According to the documents submitted by the Plaintiff pursuant to the Request to Admit, the Defendant appeared in the Provincial Court at Nanaimo on April 5, 1994 and on May 2, 1994. I find that the Defendant knew why he was there, that is, because he had been charged with offences contrary to the Narcotic Control Act, supra. The terms of the charge show that these were indictable offences. The Defendant, according to the record from the Provincial Court, elected trial by judge alone. The reference to a need for a interpreter in relation to the trial on these charges is not relevant to the issue of the Defendant's understanding of his obligations relative to his citizenship application. I note that the appearance on May 2, 1994 was for the purpose of seeking an amendment to the terms of his recognizance, that is to remove the condition that he maintain a night-time curfew at his residence.

[33]            The record shows that the Defendant attended an interview in Toronto on the following day, apparently in breach of the terms of his recognizance. Although counsel for the Defendant submitted a letter in which she stated that the Defendant did not acknowledge that his signature was on the document submitted at Tab 9 of the Plaintiff's Exhibit Book, that letter is not evidence. Likewise, the Pre-Trial Memorandum is not evidence and although counsel for the parties agree that this document could be reviewed by the Court, it was not reviewed and does not form part of the evidence on this reference.

[34]            The Defendant did not reply to the Request to Admit within the time limited by the Rules and he did not testify at the hearing of this reference. He cannot now attack the validity of the documents by means of submissions from his counsel in his Pre-Trial Conference Memorandum or otherwise.

[35]            I find that the Defendant was aware that he had been charged with an indictable offence at the time that he attended before the Citizenship Judge on May 3, 1994.

[36]            In these circumstances, I conclude from the lack of any notation on the report from the Citizenship Judge that the Defendant failed to disclose to her that he had been charged with an indictable offence under the Narcotic Control Act, supra.

[37]            Further, I find, on the basis of the document submitted at Tab 10 of the Plaintiff's Exhibits, that is the Oath of Citizenship dated May 11, 1999, that the Defendant took the oath of citizenship on that day, without disclosing that he had been charged with two counts of trafficking, contrary to the Narcotic Control Act, supra.

[38]            In these circumstances and on the basis of the evidence, I find that the Defendant obtained Canadian citizenship by knowingly concealing material facts, that is the outstanding criminal charges, when he took the oath of citizenship. Accordingly, a declaration will issue, pursuant to section 10(1) and section 18(1)(b) of the Act that it is the decision of this Court that the Defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

[39]            The Minister seeks his costs. Counsel for the Defendant requested that there be no order as to costs in light of the period of time for this matter to come before the Court and the Defendant's cooperation.

[40]            In the circumstances of this case, I see no reason to waive costs. However, in the exercise of my discretion I fix costs in the amount of $5,000.00, inclusive of disbursements and GST.

                                               ORDER

IT IS DECLARED, pursuant to section 10(1) and 18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, that the Defendant, Thai Van Dao, obtained Canadian citizenship by false representation or fraud or knowingly concealing material circumstances.

The Minister shall have his costs in the amount of $5,000.00, inclusive of disbursements and GST.

                                                                                      "E. Heneghan"

                                                                                                   J.F.C.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-2225-01

STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Plaintiff

and

THAI VAN DAO

                                                                                             Defendant

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   April 28, 2004

REASONS FOR ORDER AND

ORDER                     HENEGHAN J.

DATED:                     May 18, 2004

APPEARANCES:

Sally Thomas

Angela Marinos

For the Plaintiff

Mary Lam

For the Defendant

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

For the Plaintiff

Mary Lam

Barrister & Solicitor

Toronto, ON

For the Defendant