Date: 20090629
Docket: T-18-09
Citation: 2009 FC 672
Ottawa, Ontario, June 29, 2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
SYED
ALI ASGHAR IQBAL AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Syed Ali Asghar Iqbal Ahmed’s application for citizenship was refused
because of the citizenship judge’s finding that Mr. Ahmed was facing criminal charges
in relation to indictable offences at the time of his citizenship hearing. For
the reasons that follow, I have concluded that the Citizenship Judge erred in
law in finding that Mr. Ahmed was subject to a statutory bar. As a
consequence, the appeal will be allowed.
Background
[2]
The facts in this matter are simple, and not in dispute. Mr. Ahmed came
to Canada from Iran in May of 2003. He fulfilled the statutory residency
requirements, and applied for Canadian citizenship in June of 2006.
[3]
In January of 2008, Mr. Ahmed was involved in an altercation with his
wife, and the police were called. He was charged with two counts of assault,
contrary to section 266 of the Criminal Code, and one count of uttering
threats, contrary to section 264.1(1)(a) of the Code. Although not strictly
relevant to the issue on this appeal, it appears that several weeks after his
citizenship hearing, the charges were withdrawn by the Crown, upon Mr. Ahmed
agreeing to enter into a peace bond.
[4]
Mr. Ahmed appeared before a Citizenship Judge on October 3, 2008. The
Citizenship Judge found that although Mr. Ahmed had met all of the requirements
of the Citizenship Act, R.S., 1985, c. C-29, he was prohibited from
being granted citizenship by virtue of paragraph 22(1)(b) of the Act, which
provides that:
|
22. (1) Despite anything in this Act, a person shall
not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or
take the oath of citizenship …
(b) while the person is charged with, on trial for
or subject to or a party to an appeal relating to an offence under subsection
29(2) or (3) or an indictable offence under any Act of Parliament,
other than an offence that is designated as a contravention under the
Contraventions Act;
[my emphasis]
|
22. (1) Malgré les autres dispositions de
la présente loi, nul ne peut recevoir la citoyenneté au titre des
paragraphes 5(1), (2) ou (4) ou 11(1) ni prêter le serment de citoyenneté …
b) tant qu’il est inculpé pour une
infraction prévue aux paragraphes 29(2) ou (3) ou pour un acte criminel
prévu par une loi fédérale, autre qu’une infraction qualifiée de
contravention en vertu de la Loi sur les contraventions, et ce, jusqu’à la
date d’épuisement des voies de recours;
[je souligne]
|
[5]
Mr. Ahmed represented himself on the appeal, and essentially threw
himself on the mercy of the Court, asking that he be granted citizenship so as
to allow him to travel outside of Canada with his wife and child.
[6]
The offences of assault and of uttering threats are both “hybrid”
offences. That is, they may proceed either by way of indictment, or as summary
conviction offences, at the option of the Crown. I had noted from my
pre-hearing review of the file that on January 21, 2008, the Crown Attorney
charged with responsibility for prosecuting Mr. Ahmed had elected to proceed by
way of summary conviction in relation to all of the charges.
[7]
At the hearing of the appeal, I asked the parties whether Mr. Ahmed was
in fact “charged with … an indictable offence” at the time of his citizenship
hearing, in light of the Crown’s election to proceed summarily. As neither
party was in a position to address the issue at the hearing, leave was given
for the parties to file additional written submissions with respect to this
question.
Analysis
[8]
The issue before the Court is whether the essential character of a
criminal offence is changed by virtue of a Crown election to proceed summarily,
or whether the offence remains an indictable offence for the purposes of
paragraph 22(1)(b) of the Citizenship Act.
[9]
The submissions of the parties, coupled with the Court’s own research,
have revealed that what may have first appeared to have been quite a simple
question is in actual fact one that has no easy answer, as the judicial
opinions on this point are somewhat divided.
[10]
Many of the cases dealing with the characterization of criminal offences
turn on the application of paragraph 34(1)(a) of the Interpretation Act,
R.S.C. 1985, c. I-21, which provides that:
|
34. (1) Where an enactment creates an offence,
(a) the offence is deemed to be an indictable offence if
the enactment provides that the offender may be prosecuted for the offence by
indictment;
|
34. (1) Les règles suivantes s’appliquent
à l’interprétation d’un texte créant une infraction :
a) l’infraction est réputée un acte
criminel si le texte prévoit que le contrevenant peut être poursuivi par mise
en accusation;
|
[11]
In determining whether Mr. Ahmed was still charged with an indictable
offence at the time of his citizenship hearing, I will start by considering the
jurisprudence of this Court that has developed in the citizenship and
immigration context. I will then have regard to the jurisprudence in the
criminal law context.
Federal Court Jurisprudence
[12]
Dealing first with Federal Court jurisprudence, the only citizenship case
of which the Court is aware that appears to be on point is Re Gulri
(1993), 65 F.T.R. 7 (F.C.T.D.). As in Mr. Ahmed’s case, Mr. Gulri was charged
with assault, and the Citizenship Judge refused his application for citizenship
after concluding that he was facing charges in relation to an indictable
offence.
[13]
At the hearing of Mr. Gulri’s application for judicial review, the Court
found that there was nothing in the record to indicate whether the Crown had
proceeded by way of indictment or summary conviction. As a consequence, the applications
judge adjourned the appeal to allow the parties to obtain information as to how
the charge had been prosecuted. On the resumption of the hearing, the Court
determined that the charge had been prosecuted as a summary conviction offence,
and that, like Mr. Ahmed’s case, the assault charge had been either withdrawn
or dismissed some time after the citizenship hearing, upon Mr. Gulri having
entered into a recognizance to keep the peace.
[14]
The Court held that the Citizenship Judge had erred in applying paragraph
22(1)(b) of the Citizenship Act to Mr. Gulri. As the Crown had
proceeded summarily, the Court found that Mr. Gulri was not charged with an
indictable offence at the time of his citizenship hearing.
[15]
It does not appear that paragraph 34(1)(a) of the Interpretation Act
was drawn to the Court’s attention in Re Gulri, as no consideration was
given to the impact of that provision on the proper characterization of the
offence with which Mr. Gulri was charged.
[16]
The respondent relies on the decision of this Court in Ngalla v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 360, as
authority for the proposition that an offence cannot be properly characterized
as a summary conviction offence merely because the Crown elects to proceed
summarily. In particular, the respondent points to the Court’s statement that “A
summary conviction offence, as compared to a hybrid offence, is one which must
be prosecuted summarily and where no discretion is given to the Crown”: Ngalla,
at para. 13.
[17]
Read in a vacuum, these comments could suggest that a Crown election
will have no effect on the essential character of a hybrid offence, and that it
will remain an indictable offence even after the Crown elects to proceed
summarily. The Court’s comments must, however, be read in context.
[18]
Ngalla involved an inadmissibility finding, based upon the
applicant’s criminality. The applicant in that case had been charged with a
hybrid offence, and the Crown had elected to proceed summarily. However, the
provisions of the Immigration Act at issue in Ngalla provided
that a person would be inadmissible if they had been “convicted in Canada of an
indictable offence, or of an offence for which the offender may be
prosecuted by indictment…” [my emphasis].
[19]
There was no doubt that the criminal charge at issue in Ngalla could
have been prosecuted by way of indictment, even though it was prosecuted
summarily. As a consequence, the applicant in that case was properly found to
have been inadmissible.
[20]
In contrast, in the present case, paragraph 22(1)(b) of the Citizenship
Act does not refer to an offence that “may be prosecuted by indictment”,
but rather to “an indictable offence under any Act of Parliament”.
[21]
Thus, read in context, the Court’s comments in Ngalla are of
limited assistance in this case.
[22]
More problematic is the Court’s decision in Vithiyananthan v. Canada
(Attorney General) [2000] F.C.J. No. 409. In Vithiyananthan, the
applicant was seeking judicial review of a discretionary decision of the Passport
Office revoking his Canadian passport on the grounds that it had been used in
committing an indictable offence under the Immigration Act. The offence
in question was a hybrid offence, and the Crown agreed to proceed summarily, in
exchange for a guilty plea by the accused.
[23]
Thus, the question before the Court was whether, in these circumstances,
the applicant’s passport had been used to assist in "committing an
indictable offence".
[24]
In answering this question in the affirmative, the Court had regard to paragraph
34(1)(a) of the Interpretation Act. The Court found that paragraph
34(1)(a) made it clear that it is the terms of the statute under which the
accused is charged that creates the indictable offence, and that the Crown's
election does not change the terms of the statute in question. The Court also
observed that a Crown election is not necessarily determinative of the
procedure which will ultimately be used to deal with the charges, as there have
been cases where the Crown has changed its election after the accused has
entered a plea: see Vithiyananthan at para. 18.
[25]
This led the Court to conclude that hybrid offences are indictable
offences even when summary proceedings are used to obtain a conviction: see Vithiyananthan
at para. 21.
Other Canadian Jurisprudence
[26]
As will be discussed below, there has been some disagreement over
the years in the appellate level jurisprudence as to the proper interpretation
of paragraph 34 (1)(a) of the Interpretation Act. However, the Court’s
interpretation of paragraph 34(1)(a) in Vithiyananthan is consistent
with a substantial body of criminal law jurisprudence: see, for example, Dallman
v. The King, [1942] S.C.R. 339, Brown (Guardian ad litem of) v. Baugh,
[1984] S.C.J. No. 10, R. v. Connors (1998), 155 D.L.R. (4th) 391
(B.C.C.A.), at paragraphs 69 and 73, R. v. S.P.,[1996]
O.J. No. 4620 (O.C.J.) at para 8, R. v. Wilson, [1997]
O.J. No. 459 (O.C.J.); R. v. J.W.D., [1997]
O.J. No. 1069 (O.C.J.); and R. v. Martin, [1996]
O.J. No. 434 (Prov. Ct.).
[27]
However, it appears that more recent appellate-level jurisprudence
interprets paragraph 34(1)(a) of the Interpretation Act in a somewhat
different manner.
[28]
For example, in Trinidad and Tobago (Republic) v. Davis
[2008] A.J. No. 829; 2008 ABCA 275, the Alberta Court of Appeal held that:
Canadian
courts have consistently interpreted s. 34(1) of the Interpretation Act as
deeming hybrid offences to be indictable unless and until the Crown elects
to proceed summarily: see R. v. Paul-Marr, 2005 NSCA 73, 234 N.S.R.
(2d) 6, and the authorities cited therein. The election may be express or it
may be implied from the procedures followed in the prosecution, but in either
scenario, the offence is an indictable one until an election is made or
deemed to be made. [at para. 14, my emphasis]
[29]
It is noteworthy that the Supreme Court of Canada denied leave to appeal
in this case: see [2008] S.C.C.A. No. 421.
[30]
The Paul-Marr decision cited in the Trinidad and Tobago
case is a decision of the Nova Scotia Court of Appeal where Justice Cromwell,
writing for a unanimous Court, held that the characterization of an offence:
18 …
[D]epends on the application of s. 34 of the Interpretation Act, R.S.C.
1985 c. I-21. It provides that an offence that can be proceeded with summarily
or by indictment is to be deemed indictable until the Crown elects for
summary procedure….
19 The
starting point, therefore, is s. 34[(1)](a) of the Interpretation Act …
[statutory provision omitted]
20 This
section means that where an offence may be prosecuted by either indictment or
on summary conviction at the election of the Crown, the offence is deemed to
be indictable until the Crown elects to proceed by way of summary conviction…
[case
citations omitted, my emphasis].
[31]
Justice Cromwell went on to conclude that the effect of paragraph
34(1)(a) of the Interpretation Act may be displaced where, as here,
there is an express Crown election to proceed summarily: Paul-Marr, at
para. 24.
[32]
The Ontario Court of Appeal has also interpreted paragraph
34(1)(a) of the Interpretation Act to mean that hybrid offences are deemed to be indictable offences unless, and
until, the Crown elects to proceed summarily: see R. v. Mitchell (1997),
121 C.C.C. (3d) 139, at para. 4, and R. v. Gougeon (1980),
55 C.C.C. (2d) 218, at para. 47.
[33]
The respondent, quite properly, has drawn these cases to the Court’s
attention, notwithstanding that they appear to be unhelpful to the respondent’s
position. The respondent argues, however, that the cases may be distinguished,
as they deal not with the ongoing character of the offence in issue, but rather
with questions of procedure and jurisdiction. In particular, the cases address
the consequences that flow from the failure of Crown counsel to make an express
election.
[34]
It is true that several of the decisions discussed in the preceding
paragraphs do deal with the procedural consequence flowing from the failure of
Crown counsel to make an express election in relation to hybrid offences.
However, that does not, in my view, take away from the fact that several
appellate Courts have determined that a criminal offence loses its indictable
character upon the Crown electing to proceed by way of summary conviction.
[35]
Moreover, the Trinidad and Tobago case does not involve
the procedural consequence resulting from the failure of Crown counsel to make
an express election in relation to a hybrid offence.
[36]
Trinidad and Tobago involves an extradition proceeding with
respect to a Mr. Davis. Under the provisions of paragraph 3(1)(b)(i) of the Extradition
Act, S.C. 1999, c. 18, in order for Mr. Davis to
be extradited from Canada, he had to be facing prosecution for an offence in
another country that would be punishable by up to five years’ imprisonment, if
prosecuted in Canada.
[37]
The offence in issue was a hybrid offence, and Mr. Davis would
not have been subject to extradition, if the matter were prosecuted summarily.
Thus, the issue for the Alberta Court of Appeal was whether, in considering an
extradition request, the Crown had the onus of demonstrating that the Crown would have proceeded by indictment rather
than summary conviction in a Canadian prosecution of the offence in question.
[38]
The Court of Appeal held that the question of
whether the Canadian comparator offence was punishable by imprisonment for more
than two years was a matter of statutory interpretation, and not of evidence.
It was in this context that recourse was had by the Court to paragraph
34(1)(a) of the Interpretation Act – not to determine the procedure to
be followed - but rather to ascertain the character of the offence in
question. It was in this context that the Court of Appeal found that the hybrid
offence in issue was properly characterized as an indictable offence, but only
until such time as an election was either expressly made, or was deemed to have
been made by the Crown, at which time the effect of paragraph 34(1)(a) of the Interpretation
Act would be displaced, and the matter would become a summary conviction
offence.
[39]
Given that there was no pending prosecution against Mr. Davis in Canada,
it followed that no Crown election had been made, and, as a result, the Alberta
Court of Appeal found that the comparator offence retained its indictable
character.
[40]
In light of the foregoing, I am satisfied that, in accordance with the
current analysis of paragraph 34(1)(a) of the Interpretation Act, the
character of a hybrid offense changes from indictable to summary conviction,
upon the Crown electing to proceed summarily.
Application of the Law to Mr. Ahmed’s Case
[41]
Given that the Crown had expressly elected to proceed summarily in Mr.
Ahmed’s case long before his citizenship hearing, it follows that at the time
of his citizenship hearing, he was no longer facing charges in relation to an
indictable offence. As a consequence, the statutory bar contained in paragraph
22(1)(b) of the Citizenship Act did not apply. Therefore, the appeal
will be allowed, and the decision of the Citizenship Judge will be set aside.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that this appeal is allowed, and the matter is remitted
to a different Citizenship Judge for re-determination in accordance with these
reasons.
“Anne
Mactavish”
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