Date: 20001012
Docket: T-166-00
Between:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
WALTER OBODZINSKY
(Alias Wlodzimierz or Volodya Obodzinsky)
Defendant
REASONS FOR ORDER
NADON J.
[1] The defendant filed a motion for an order finally staying the proceedings to revoke citizenship initiated by the plaintiff in the case at bar. The motion was based on s. 50(1)(b) of the Federal Court Act, R.S.C. 1985, c. F-7, which provides that:
50. (1) Stay of proceeding – The Court may, in its discretion, stay proceedings in any cause or matter,
(1) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(2) where for any other reason it is in the interest of justice that the proceedings be stayed.
[2] The following grounds were submitted in support of this application: the defendant's state of health did not allow him to take part in the trial, the disclosure of his citizenship record was belated and incomplete, his immigration record has not been disclosed and the instant proceedings were brought after an undue delay.
[3] The defendant, who was born in Poland in 1919, obtained Canadian citizenship in 1955 following his immigration to Canada in 1946. The proceeding to revoke his citizenship was initiated on July 30, 1999 when the plaintiff informed the defendant that she proposed to make a report to the Governor in Council pursuant to s. 10 of the Citizenship Act, R.S.C. 1985, c. C-29, that he had obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
[4] Following that notice the defendant asked the plaintiff to refer determination of the matter to this Court as provided by s. 18(1) of the Citizenship Act:
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
[5] In accordance with that section, the plaintiff on February 1, 2000 filed an action in the case at bar alleging that the defendant's citizenship should be revoked as it was obtained by false representation or fraud or by knowingly concealing material circumstances.
[6] In support of his motion the defendant alleged, first, that his precarious state of health justified a stay of the proceedings to revoke citizenship. He is 81 years old and has cardiac problems. The evidence submitted showed that he suffered an initial coronary in 1984, was hospitalized in 1993 for a bilateral stroke on August 19, 1999 a second coronary once again required him to be hospitalized. Since the last coronary, he has been under constant medication and is subject to frequent cardiac illnesses which may result from physical effort or emotional causes.
[7] The affidavits of two cardiologists confirmed the defendant's fragile state of health and the impact that a trial might have on his health. Dr. François Sestier [TRANSLATION] " consider[ed] that the patient does not have the cardio-vascular capacity to prepare for and undergo the trial in question", while Dr. Michael D'Avirro concluded that "[c]ertainly any minimal physical or emotional stress would present a great risk to this patient's health". Further, it is clear from the medical opinions that the defendant has very little chance of his health improving.
[8] It should further be noted that the plaintiff did not dispute the defendant's state of health. Dr. John H. Burgess, also a cardiologist, examined the defendant at the plaintiff's request. In his affidavit he concluded that:
1. The patient's health due to extensive cardiac disease is precarious. His long term outlook is poor and he is at high risk of further heart attacks and sudden death.
2. Any stress causes angina in this patient and therefore a risk of a coronary event – heart attack or cardiac arrest.
3. The impact of stress cannot be controlled in view of his advanced cardiovascular disease.
Opinion: Mr. Obodzinsky must not be required to attend any court hearing or inquiry as this would entail a high risk of a serious cardiac complication.
[9] I have no difficulty accepting the medical evidence submitted by the parties. It seems clear to me that the defendant's state of health is precarious and it would be difficult or impossible for him to take an active part in the ongoing proceedings without making his condition worse. In spite of this, it must be determined whether the defendant's state of health justifies a stay of the revocation proceedings.
[10] In this regard, the defendant argued that continuing the proceedings initiated by the plaintiff would constitute a serious abuse, would impair the integrity of the judicial system and would create a fundamental injustice. He further argued that if the proceedings were to continue
it would be a breach of the rules of fundamental justice contained in s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 ("the Charter").
[11] As to the argument based on the Charter, the defendant maintained that the notice of revocation of citizenship entails the protection of s. 7 by depriving him of, or threatening to deprive him of, the right to security mentioned in that section. Consequently, this justifies the Court ordering that the proceedings be stayed pursuant to s. 24 of the Charter.
[12] The question of the application of s. 7 of the Charter to citizenship revocation proceedings has already been considered by the Federal Court of Appeal in Canada (Secretary of State) v. Luitjens (1992), 9 C.R.R. (2d) 149. In that case Mr. Luitjens was seeking to appeal a judgment of the Trial Division of this Court which found that he had obtained his citizenship by false representation. That appeal was contrary to the wording of s. 18(3) of the Citizenship Act, that a judgment of the Trial Division is final and no appeal lies from it. The appellant argued that s. 18(3) was not executory since it infringed s. 7 of the Charter.
[13] Linden J.A., for the Court, concluded that s. 7 of the Charter did not apply to proceedings under s. 18 of the Citizenship Act, at 152:
I am of the view that s. 7 does not render s. 18(3) of no force and effect. First, at the time of the decision of the court, at least, s. 7 was not engaged in that there was not yet any deprivation of Mr. Luitjens' "life, liberty and security of the person". All that was decided by the trial judge was the fact that Mr. Luitjens obtained his Canadian citizenship by false representations. This finding may well form the basis of decisions by others, which may interfere with those rights at some future time, but this decision does not do so. Therefore, it is merely one stage of a proceeding which may or may not result in a final revocation of citizenship and deportation or extradition.
[14] In light of this judgment, since the proceedings at bar are designed solely to determine whether the defendant obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances, and not to deprive him of his citizenship or deport him, there is no infringement or threat of infringement of the defendant's right to security. The Charter therefore does not apply in the case at bar and cannot be used by the defendant to secure a stay of the instant proceedings.
[15] The defendant also argued that continuing the proceedings initiated by the plaintiff would constitute a serious abuse of process that would impair the integrity of the judicial system and create a fundamental injustice. In his submission, the serious abuse in question is putting him at risk and subjecting him to a procedure at the end of which his citizenship could be revoked despite his state of health and his inability to defend himself. The defendant relied on the doctrine of abuse of process and on the analysis by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, of the legal principles applicable to an application to stay proceedings in a citizenship matter.
[16] In Tobiass, the revocation proceedings pursuant to s. 18(1) of the Citizenship Act had been brought against the appellants. Since the Department of Justice was not satisfied with the speed at which the proceedings were moving, the Assistant Deputy General in charge of civil litigation at the Department of Justice met with the Chief Justice of the Federal Court to discuss the cases. The discussions and exchange of correspondence on this matter took place without counsel for the appellants being informed. The latter then asked for a stay of proceedings, which was granted by a judge of the Trial Division of this Court who concluded that irreparable harm had been caused to the appearance of judicial impartiality. The Federal Court of Appeal then quashed the stay of proceedings and the appellants filed an appeal to the Supreme Court of Canada, which upheld the Appeal Court judgment.
[17] As far as an abuse of process is concerned, I consider there was no abuse of process in the case at bar. I agree with the plaintiff that the fact that she began the proceeding under s. 18 of the Citizenship Act cannot be regarded as an abuse of process or as reprehensible conduct. The fact of initiating this proceeding does not amount to conducting an unfair or harassing action at law, even if the defendant has health problems. The fact that it was the government which initiated the proceeding does not necessarily make it harassment. The plaintiff did not do anything out of the ordinary that would justify describing her action as reprehensible. The fact that the defendant found himself in an unpleasant situation was due to circumstances beyond her control.
[18] However, the defendant argued that the stay of proceedings for abuse of process was not limited to cases involving wrongful conduct by the government, and noted the following passage in Tobiass, at paras. 89 and 90, indicating the existence of a "residual category" and setting out the test that must be met for the stay to be granted:
Most often a stay of proceedings is sought to remedy some unfairness to the individual that has resulted from state misconduct. However, there is a "residual category" of cases in which a stay may be warranted. L'Heureux-Dubé J. described it this way, in R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 73:
This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.
The residual category, it bears noting, is a small one. In the vast majority of cases, the concern will be about the fairness of the trial.
If it appears that the state has conducted a prosecution in a way that renders the proceedings unfair or is otherwise damaging to the integrity of the judicial system, two criteria must be satisfied before a stay will be appropriate. They are that:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[19] I do not think the residual category is capable of assisting the defendant. I do not agree with the defendant's interpretation that the residual category allows the doctrine of abuse of process to be applied even where there is no reprehensible conduct by the government. L'Heureux-Dubé J. indicated clearly that there must be circumstances "in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness" (my emphasis), which implies the existence of reprehensible conduct. Further, if one continues to read Tobiass, the Supreme Court gives the following indication concerning the two tests and the residual category, at para. 91:
The first criterion is critically important, it reflects the fact that a stay of proceedings is a prospective remedy. A stay of proceedings does not redress a wrong that has already been done. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole in the future . . . For this reason, the first criterion must be satisfied even in cases involving conduct that falls into the residual category . . . The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice. Ordinarily, the latter condition will not be met unless the former is as well – society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. (My emphasis.)
[20] In my opinion, Tobiass clearly indicates that a stay of proceedings will be applicable in the case of citizenship revocation proceedings when there is proof of reprehensible conduct. There was no reprehensible conduct by the plaintiff in the case at bar. In my opinion, continuing the proceedings in this case would not have the effect of offending society's sense of justice.
[21] Consequently, if there is no abuse of process or even any conduct by the plaintiff out of the ordinary, I see no reason to order a stay of proceedings on the basis of the principle of abuse of process.
[22] In support of his application for a stay, the defendant referred also to several criminal law cases in which a stay of proceedings was granted because of the state of health of the accused. The defendant suggested that his situation was analogous to the situation of the defendant in a criminal case, rather than that of an defendant in a civil case, since the proceeding was initiated by the government and the rights in question do not relate to property. The case is one of public civil law, not private civil law, which in his submission brought it closer to the criminal law.
[23] The plaintiff, for her part, insisted that since this was simply a civil action, the defendant's state of health or the effect that the action could have on the defendant's health is not a consideration that would justify a stay of proceedings. The fact that the government brought this action should not be conclusive either. The plaintiff also suggested that decisions in criminal cases were made primarily in terms of application of s. 7 of the Charter, since the liberty of the individual is at issue when a criminal charge is laid.
[24] I do not feel it is necessary for me to discuss in detail the criminal cases mentioned by the defendant, since I agree with him that if the case were a criminal case it would be appropriate to order a stay of proceedings because of his state of health. Section 7 of the Charter, which applies when criminal proceedings are at issue, guarantees the accused that the rules of fundamental justice will be observed in his trial, and this includes the right to a full and complete defence.
[25] However, the action in the case at bar is not a criminal proceeding. It has been held several times that a proceeding initiated pursuant to s. 18 of the Citizenship Act is a civil proceeding, and so one in which the right to a full and complete defence does not apply.
[26] In Canada (Secretary of State) v. Delezos, [1989] 1 F.C. 297 (T.D.), the defendant was convicted under the provisions of the Criminal Code of having uttered a forged document in his citizenship application and that conviction occurred before the reference under s. 17 (now s. 18) of the Citizenship Act. In that case he relied on s. 11(h) of the Charter and argued that the reference sought to punish him for the same offence a second time, this time by taking away his citizenship. Muldoon J. concluded as follows, at 303:
The respondent is not being tried again for that offence here in this Court . . . This Court does not purport to try him again. He stands in no jeopardy of any penal consequence whatever as a consequence of the agreed finding. This Court will not impose any punishment upon the respondent. The importance of the plea and conviction is that they provide an essential element in the decision of whether the respondent obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. This enquiry is entirely civil in nature; it is not a criminal law proceeding.
[27] In Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.), McGillis J. made similar observations about the civil nature of revocation proceedings, at 510:
In the circumstances, I am satisfied that the basic interpretative principles enunciated in Ahani v. Canada, supra, are applicable to citizenship matters. I have therefore concluded that the scope of the proceedings under section 18 of the Citizenship Act must be analysed in the context of principles and policies underlying immigration and citizenship law, and not in the criminal law context. Indeed, as indicated earlier, a judge conducting a reference under section 18 of the Citizenship Act makes only a factual finding concerning the circumstances under which a person obtained his Canadian citizenship. To paraphrase my words in Ahani v. Canada, supra, that factual finding is purely and simply a citizenship matter. In the circumstances, I agree with Collier J. in Canada (Secretary of State) v. Luitjens, supra, that a reference conducted under section 18 of the Citizenship Act is in the nature of a civil proceeding in which the civil standard of proof applies.
[28] In Canada (Minister of Citizenship and Immigration) v. Dueck, [1998] 2 F.C. 614 (T.D.), Noël J. (as he then was) expressed himself in agreement with the remarks of McGillis J. cited above and with her conclusion that the revocation proceeding is a civil one. He also explained, at 633, that the revocation proceeding mentioned in s. 18 of the Citizenship Act is not punitive in nature:
The taking back by the state of a privilege on the ground that it was originally acquired by fraud based on a remedy provided by statute for that sole purpose is not punishment. The remedy involved is no more punitive than would be, for instance, the one pursued by an insurance company which sues an insured to obtain the cancellation of a policy on the ground that it was originally obtained by fraud, misrepresentation, or as a result of the willful omission of a material fact. In both cases, the remedy is limited to taking back that to which there was never any entitlement.
[29] I adopted these comments myself in Canada (Minister of Citizenship and Immigration) v. Katriuk, [1999] 3 F.C. 143 (T.D.). The defendant had filed an application to stay proceedings brought under s. 18 of the Citizenship Act. He argued that the destruction or loss of documents by the government had caused him harm and that he was not in a position to present a full and complete defence as guaranteed him by the Charter. After examining the aforementioned comments and the judgment of Linden J.A. in Luitjens, supra, I came to the following conclusion, at 152:
As the respondent's "life, liberty and security" are not at stake in these proceedings, section 7 of the Charter cannot be invoked. These proceedings are civil in nature and consequently, the rules of evidence applicable to civil matters are the relevant rules.
[30] Finally, in Tobiass, supra, the Supreme Court of Canada noted the distinction to be made between criminal cases and citizenship cases. At para. 108 of the judgment the Court said the following:
Perhaps the first thing to notice is that what is at stake for the appellants in this case is arguably different from what is at stake for the typical accused in the typical criminal case. The state is trying to deprive the appellants of their citizenship and not of their liberty. Canadian citizenship is undoubtedly a very "valuable privilege" . . . Yet for most, liberty is more valuable still. Therefore, the interests on the appellants' side of the balance do not weigh quite so heavily as they would if the proceedings were purely criminal in nature.
[31] In light of these decisions, and in view of the fact that s. 7 of the Charter and the right to a full and complete defence do not apply in the case at bar, I am not prepared to apply to the proceedings at issue the principles to do with the stay of proceedings that are found in criminal cases. This is a civil proceeding to which the same rules must be applied as any other civil proceeding. For this reason, and since there was no reprehensible conduct by the plaintiff that could impair the integrity of the judicial process, the defendant's state of health is not a factor that would justify a stay of proceedings.
[32] The defendant also submitted arguments based on the delay in bringing proceedings and the disclosure of his immigration and citizenship files. As to the delay in bringing proceedings, he argued that the delay was clearly harmful to him as he is now too ill to defend himself. Consequently, the delay affected his right to present a defence and the fairness of the hearing to be held and constituted an abuse by the plaintiff.
[33] He also considered that the belated disclosure of the information he requested regarding his citizenship file contributed to the abuse in the case at bar. On August 12, 1999 he filed an application for disclosure of his immigration and citizenship file and his file with the R.C.M.P. He obtained disclosure of his citizenship file in two parts, on September 21, 1999 and April 3, 2000. He was also informed that his immigration file no longer existed.
[34] The plaintiff submitted that the delay was entirely attributable to the fact that the defendant concealed important facts when he applied for admission to Canada. Further, she considered that the defendant had not established that he would suffer any harm as a result of the delay that occurred.
[35] A similar situation arose in Katriuk, supra. The defendant cited the delay as a factor that aggravated the problems caused for him by non-disclosure. I made the following comments, at 159:
There is a difference between the point in time when the alleged wrong came to the attention of the authorities, about 1986, the point in time when the authorities chose to begin proceedings against the wrongdoer, 1996, and the point in time of the unfolding of the proceedings, 1997-1998. As the Minister has demonstrated that Mr. Katriuk obtained his citizenship by concealing material circumstances, any suffering by Mr. Katriuk will be the result of his own making. The only period of delay with which I am concerned is the period between the filing of the statement of claim in October 1996 and the unfolding of these proceedings in 1997 and 1998. I cannot conclude that the respondent has suffered due to an undue delay in this matter.
[36] The notice of revocation in the case at bar was sent to the defendant on July 30, 1999 and the proceedings of referral to this Court began on February 1, 2000. As in Katriuk, supra, I am not prepared to conclude that the delay that has elapsed since the proceedings were begun is unreasonable and has caused the defendant to suffer. Certainly, the defendant's state of health has become worse with time, but this is due to the progression of his cardiac problems and not to the delay of the proceedings in the case at bar. In my view, it is only a coincidence that the defendant's state is what it is at this stage of the revocation proceeding. The fact that the defendant is experiencing difficulties participating in the trial and defending himself is not due to an unreasonable delay, it is because of his health. His health problems are not attributable to any fault by the plaintiff. In my view, the defendant has not shown that the delay in the proceedings caused him harm.
[37] Finally, the defendant argued that the destruction of his immigration file also constituted an abuse since he could not gain access to this file, although it is directly relevant to the question of a false declaration. He maintained that in the absence of the file the action is wrongful and unfair. The defendant relied on R. v. Carosella, [1997] 1 S.C.R. 80, and R. v. La, [1997] 2 S.C.R. 680, which dealt with the loss or destruction of evidence.
[38] I also dealt with the question of the destruction of the immigration file in Katriuk, supra. Mr. Katriuk alleged that the destruction of his immigration file, destroyed in accordance with a government policy, had caused him harm by preventing him from presenting a full and complete defence. After concluding that this was a civil proceeding, and so that s. 7 of the Charter and the right to a full and complete defence did not apply, I had occasion to consider Carosella and La, supra. In my opinion, Carosella did not apply since that case concerned the deliberate destruction of the content of files in order to obstruct justice, and that is not the case here. As to La, the reasoning of the Supreme Court indicated that in the event of the loss or destruction of evidence which should have been disclosed, the prosecution had a duty to give a satisfactory explanation of the circumstances in which the evidence was lost in order to satisfy its duty of disclosure, and that even the loss of relevant evidence did not constitute a breach of the duty of disclosure if the government's conduct was reasonable.
[39] Following that analysis, and considering the applicable facts, I came to the following conclusion, at 155-156:
The evidence adduced by the Minister herein showed that destruction was routine for inactive government files and that, at the time of the destruction, there was no indication that any legal proceedings would ever be instituted with respect to the respondent's immigration or citizenship status. On the issue of the evidence's relevance, the missing documents would have been equally valuable and determinative to both parties. The respondent's visa application was not available to either party, therefore both parties suffered from its absence . . .
Since the respondent was given landed immigrant status in 1951 and granted citizenship in 1958, I fail to see how any government official could be negligent in failing to accord the respondent's immigration application form any further importance. At that time, there were no allegations of false representations against the respondent, nor had the respondent's name yet been mentioned in connection with allegations such as those contained in the Deschênes Commission [Commission of Inquiry on War Criminals] documents. As such, there was no reason to see the evidence as being relevant at the time of its destruction. In any event, I am not satisfied that routine destruction of inactive government files constitutes negligence on the part of the government.
[40] I consider that the same reasoning applies in the case at bar and that the destruction of the defendant's immigration file does not justify a stay of proceedings.
[41] In conclusion, I consider that the interest of justice as mentioned in s. 50(1)(b) of the Federal Court Act do not require that the proceedings in the case at bar be stayed on account of the defendant's state of health, the delay in instituting proceedings or the non-disclosure of his immigration file.
[42] For these reasons, the motion made by the defendant for a stay of proceedings is dismissed.
OTTAWA, Ontario
October 12, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-166-00
STYLE OF CAUSE:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
WALTER OBODZINSKY
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 27, 2000
REASONS FOR ORDER BY: NADON J.
DATED: October 12, 2000
APPEARANCES:
David Lucas for the plaintiff
Sébastien Da Sylva
Johanne Doyon for the defendant
SOLICITORS OF RECORD:
Morris Rosenberg for the plaintiff
Deputy Attorney General of Canada
Montréal, Quebec
DOYON, GUERTIN, MONTBRIAND for the defendant
& PLAMONDON
Montréal, Quebec
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