Docket: T-1570-15
Citation:
2016 FC 44
Ottawa, Ontario, January 19, 2016
PRESENT: The
Honourable Mr. Justice Zinn
|
BETWEEN:
|
|
MOHAMAD RAAFAT
MONLA,
HAMED MOUNLA,
AND RACHID
MOUNLA
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
|
|
Respondent
|
ORDER AND REASONS
[1]
This is one of a number of applications case-managed
by the Court that were commenced after the Minister served written notice of
his intention to make a report that may lead to the revocation of the recipients’
Canadian citizenship on the grounds that it was obtained by false
representation or fraud or by knowingly concealing material circumstances.
[2]
Mr. Waldman, counsel for a number of the
applicants in these case-managed proceedings, and Ms. Espejo Clarke, counsel
for the Minister, indicated that they would be bringing preliminary motions in
a number of these applications. The Court directed that these motions be heard
together over two days with regard to the following eight applications:
T-1570-15 (MONLA), T-1571-15 (BARAKAT), T-1572-15 (SAMER BIDEWI), T-1573-15 (AYMAN
BIDEWI), T-1584-15 (HASSOUNA), T-1586-15 (KARIM), T-1696-15 (NADA), and T-1707-15
(KARIM) [collectively the Initial Revocation Judicial Review Applications].
Other similar applications being case-managed in this group are being held in
abeyance pending the outcome of these motions [collectively the Additional
Revocation Judicial Review Applications]. The Additional Revocation Judicial
Review Applications, as at the date of this Order and Reasons, are listed in
Annex A.
[3]
Subsequent to scheduling these motions, the
Court was advised that the Minister was withdrawing the notice of intent to
revoke the citizenship in T-1586-15 (KARIM). As that application for judicial
review will not be proceeding, no decision will be issued with respect to it.
[4]
A copy of this Order and Reasons attached to a
separate Order applying these Reasons will be filed in each of the Initial
Revocation Judicial Review Applications, except for T-1586-15 (KARIM). A copy
of this Order and Reasons will also be filed in each of the Additional
Revocation Judicial Review Applications and provided to counsel. This Order
and Reasons is not binding on those applications but is binding only on the
parties to the Initial Revocation Judicial Review Applications wherein these
motions were brought. A further case management conference shall be held to
discuss its impact on the other case-managed files.
Legal Background
[5]
The Strengthening Canadian Citizenship Act,
SC 2014, c 22, came into force on May 28, 2015. It made material revisions to
the provisions regarding revocation of citizenship in the Citizenship Act,
RSC 1985, c C-29. For ease of reference the Citizenship Act as it read
prior to the Strengthening Canadian Citizenship Act shall be referred to
as the Former Act, and afterwards, as the Amended Act. The relevant provisions
of the Former Act, the Amended Act, and the transitional provisions of the Strengthening
Canadian Citizenship Act, are reproduced in Annexes B, C, and D,
respectively.
[6]
Under the Former Act one’s citizenship could be
revoked pursuant to section 10 by order of the Governor in Council where it was
satisfied that citizenship had been obtained “by false
representation or fraud or by knowingly concealing material circumstances.”
The decision of the Governor in Council was based upon a report from the
Minister.
[7]
Prior to issuing his report, the Minister was
required pursuant to section 18 of the Former Act to send a notice of intention
to revoke citizenship to the person concerned, outlining the grounds for
revocation. The person concerned had the right to request that the matter be
referred to the Federal Court to determine whether he or she obtained Canadian
citizenship by false representation or fraud or knowingly concealing material
circumstances.
[8]
If the person did not refer the matter to the
Federal Court within 30 days, then the Minister could submit his report to the
Governor in Council recommending that citizenship be revoked.
[9]
If the person requested that the matter be referred
to the Federal Court, then the Minister could bring an action in the Federal
Court for a declaration that the person concerned obtained Canadian citizenship
by false representation or fraud or by knowingly concealing material
circumstances. If, after a trial, the Court was satisfied on the balance of
probabilities that the affected person obtained Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances, then
a declaration to that effect would issue.
[10]
Only then could the Minister make his report to
the Governor in Council. The text of the report that the Minister presented to
the Governor in Council was disclosed to the person concerned, who had the
opportunity to make written submissions. Any such submissions were considered
by the Minister and attached to the final report presented to the Governor in
Council If the Governor in Council decided to revoke the person’s citizenship,
it would be by Order-in-Council.
[11]
Under the Amended Act one’s citizenship can be
revoked pursuant to section 10(1) by the Minister if he “is satisfied on the balance of probabilities that the person
has obtained, retained or resumed his or her citizenship by false
representation or fraud or by knowingly concealing material circumstances.”
It is only when an exceptional circumstance specified in the Amended Act
applies that the Minister is required to refer the matter to the Federal Court
for a declaration. None of those exceptions applies in any of the Initial
Revocation Judicial Review Applications or in the Additional Revocation
Judicial Review Applications.
[12]
Under subsection 10(3) of the Amended Act,
before the Minister can revoke the citizenship of the person concerned, he must
issue a notice that specifies “the person’s right to
make written representations” and “the grounds
upon which the Minister is relying to make his or her decision.” “A hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is necessary.”
[13]
Section 7.2 of the Citizenship Regulations,
SOR 93-246 describes the circumstances when an oral hearing may be held:
A hearing may be held under subsection 10(4)
of the Act on the basis of any of the following factors:
(a) the existence of evidence that raises a
serious issue of the person’s credibility;
(b) the person’s inability to provide
written submissions; and
(c) whether the ground for revocation is
related to a conviction and sentence imposed outside Canada for a offence that,
if committed in Canada, would constitute a terrorism offence as defined in
section 2 of the Criminal Code.
[14]
The Minister’s decision to revoke citizenship is
required to be made in writing and may be the subject of a judicial review
application in this Court.
[15]
The Strengthening Canadian Citizenship Act
contains transitional provisions dealing with matters prior to the date when
the Amended Act became effective. The most relevant of these for the purposes
of these motions is subsection 40(1) which provides that “[a] proceeding that is pending before the Federal
Court immediately before the day on which section 8 comes into force, as a
result of a referral under section 18 of the Citizenship Act as that
section 18 read immediately before that day, is to be dealt with and disposed
of in accordance with that Act, as it read immediately before that day”
[emphasis added].
Nature of
the Motions
[16]
There are some facts unique and personal to each
applicant in the Initial Revocation Judicial Review Applications; however, they
do share similarities. Each applicant received a notice of revocation under
the Amended Act. All but one also received a notice under the Former Act. All
who received a notice under the Former Act requested that the Minister refer
the matter to the Federal Court but the Minister did not do so.
[17]
Each applicant seeks an injunctive order staying
the Minister from taking any steps or proceedings under the notice to revoke issued
under the Amended Act until such time as the application for leave and judicial
review is considered and finally determined.
[18]
Briefly, the underlying applications, with one
exception, seek (a) a declaration that the procedural provisions relating to
citizenship revocation under the Amended Act are void because they offend
section 7 of the Canadian Charter of Rights and Freedoms and cannot be
saved under section 1; (b) a declaration that the revocation notice is void
because it violates section 2(e) of the Bill of Rights; (c) a
declaration that the revocation notice is void because it violates the
transitional provisions of the Strengthening of Canadian Citizenship Act;
and (d) an order quashing the notice of revocation due to an abuse of process,
stemming from delay.
[19]
The Minister moves to strike the applications on
the basis that the applications for writs of prohibition and declaration are
premature because: (a) any notice issued under the Former Act has been
extinguished by operation of law and the notices issued under the Amended Act are
permitted by the transitional provisions of the Strengthening of Canadian
Citizenship Act; (b) the Minister has only taken administrative action in
issuing the notices and the applicants have not yet exhausted the process
provided in the Amended Act; (c) the Charter challenge should not be
litigated in a factual vacuum; and (d) the applicants’ remedy if citizenship is
revoked is to seek review of that decision in Federal Court.
Factual
Background of the Applicants
T-1570-15 (MONLA)
[20]
Mohammed Monla and his minor children Rachid
Mounla and Hamed Mounla, all born in Lebanon, became permanent residents of
Canada on August 13, 2003. On December 5, 2006, Mr. Monla submitted an
application for Canadian citizenship for himself and his two sons based on his
attestation that he had resided in Canada for 1136 days in the preceding four
years. On May 28, 2008, all three became Canadian citizens.
[21]
On September 30, 2011, pursuant to subsection
18(1) of the Former Act, the Minister issued notices of revocation to Mr. Monla
and his sons on the basis that Mr. Monla had failed to disclose all of his
absences from Canada and had provided false information with respect to his
residence during the four years immediately preceding his citizenship
application.
[22]
The notice followed an RCMP investigation of
Nizar Zakka, a citizenship consultant, his firm, Decision Immigration 2000
Inc., and his partners. It is alleged that clients of these consultants and
firm, including Mr. Monla, used their services to misrepresent their residence
in Canada in order to obtain Canadian citizenship.
[23]
On March 2, 2012, Mr. Monla and his sons
requested that the matter be referred to the Federal Court. The Minister did
not refer the matter to the Federal Court in the 3 years and 88 days that
followed before the Strengthening Canadian Citizenship Act came into
force. However, on August 6, 2015, 70 days after it came into force, the Minister
issued notices under the Amended Act to Mr. Monla and his two sons. For ease
of reference, for Mr. Monla and the others who received notices under the
Former Act and the Amended Act, the first notice will be referred to as the
Initial Revocation Notice and the second notice will be referred to as the
Second Revocation Notice.
[24]
The Second Revocation Notice to Mr. Monla stated,
in relevant part: “Based upon the evidence currently
before me, it appears that you provided false information on your application
for Canadian citizenship with respect to your residence by not disclosing all
of your absences from Canada within the four (4) years immediately preceding
the date of your application.” The Minister gave him 60 days “to provide written submissions as to why your citizenship
should not be revoked” and informed Mr. Monla that thereafter a decision
would be made “as to whether an oral hearing is
required” based upon the factors prescribed in section 7.2 of the Citizenship
Regulations.
[25]
It appears from the record that the supporting
information and documents referenced in the Second Revocation Notice predate
the issuance of the Initial Revocation Notice provided on September 30, 2011,
save for a reference to Mr. Monla’s LinkedIn profile as of July 10, 2015.
T-1571-15
(BARAKAT)
[26]
Maaz Mohammad Barakat, born in Syria, became a
permanent resident of Canada on September 20, 1988. He submitted family
sponsorship applications for his wife, Hassana Sidana, and son, Kareem Barakat,
and they became permanent residents of Canada on August 3, 2002.
[27]
Mr. Barakat submitted an application for
Canadian citizenship on August 8, 2002, declaring no absences from Canada in
the relevant four year period. He became a Canadian citizen on April 1, 2003.
[28]
Initially Mr. Barakat’s wife was an applicant in
his application for judicial review; however, counsel has subsequently filed a
separate application relating to the notice of revocation she received, which
is being held in abeyance pending the disposition of these motions.
[29]
Mr. Barakat made an application for citizenship
for his minor son, Kareem, on September 22, 2004, declaring that he had not
been absent from Canada for more than six months during the relevant period.
Kareem became a Canadian citizen on December 20, 2005.
[30]
On June 11, 2011, pursuant to subsection 18(1)
of the Former Act, the Minister issued a revocation notice to Mr. Barakat on
the basis that he had failed to disclose all of his absences from Canada and
had provided false information with respect to his residence during the four
years immediately preceding his citizenship application. A notice was also
issued the same day to his son, Kareem, on the basis that he had obtained
citizenship directly as a result of his father having obtained citizenship by
false representation or fraud or by concealing material circumstances.
[31]
The notice followed an RCMP investigation of
Nizar Zakka, a citizenship consultant, his firm, Decision Immigration 2000
Inc., and his partners. It is alleged that clients of these consultants and
firm, including Mr. Barakat, used their services to misrepresent their
residence in Canada in order to obtain Canadian citizenship.
[32]
On October 28, 2011, Mr. Barakat and his son
requested that the matter be referred to the Federal Court. The Minister did
not refer the matter to the Federal Court in the 3 years and 213 days that
followed before the Strengthening Canadian Citizenship Act came into
force. However, on August 6, 2015, 70 days after it came into force, the
Minister issued notices under the Amended Act to Mr. Barakat and his son.
[33]
The Second Revocation Notices, in relevant part,
are identical to that issued to Mr. Monla.
[34]
It appears from the record that all of the
supporting information and documents referenced in the Second Revocation
Notices predate the issuance of the Initial Revocation Notice provided on June
11, 2011, save for a recent internet search.
T-1573-15 (SAMER
BIDEWI)
[35]
Samer Bidewi was born in Syria. He became a
permanent resident of Canada on August 30, 1998. In his application for
citizenship dated March 1, 2004, he declared that he had been absent from
Canada for two trips totalling 28 days and that he had been physically present
in Canada for 1432 days. He became a Canadian citizen on March 7, 2005.
[36]
On February 27, 2012, pursuant to subsection
18(1) of the Former Act, the Minister served a notice on Mr. Bidewi on the
basis that he had failed to disclose all of his absences from Canada and had
provided false information with respect to his residence during the four years
immediately preceding his citizenship application.
[37]
The notice followed an RCMP investigation of
Nizar Zakka, a citizenship consultant, his firm, Decision Immigration 2000
Inc., and his partners. It is alleged that clients of these consultants and
firm, including Mr. Bidewi, used their services to misrepresent their residence
in Canada in order to obtain Canadian citizenship.
[38]
On March 2, 2012, Mr. Bidewi requested that the
matter be referred to the Federal Court. The Minister did not refer the matter
to the Federal Court in the 3 years and 88 days that followed before the Strengthening
Canadian Citizenship Act came into force. However, on August 11, 2015, 75
days after it came into force, the Minister issued a notice under the Amended
Act to Mr. Bidewi.
[39]
The Second Revocation Notice, in relevant part,
is identical to that issued to Mr. Monla.
[40]
It appears from the record that all of the
supporting information and documents referenced in the Second Revocation
Notices predate the issuance of the Initial Revocation Notice provided on
December 6, 2011, save for a recent internet search.
T-1574-15 (AYMAN
BIDEWI)
[41]
Ayman Bidewi was born in Syria. He became a
permanent resident of Canada on August 30, 1998. In his application for
citizenship dated July 19, 2004, he declared that he had been absent from
Canada for 34 days and that he had been physically present in Canada for 1426
days. He became a Canadian citizen on July 25, 2005.
[42]
On February 23, 2012, pursuant to subsection
18(1) of the Former Act, the Minister served a notice on Mr. Bidewi on the
basis that he had failed to disclose all of his absences from Canada and had
provided false information with respect to his residence during the four years
immediately preceding his citizenship application.
[43]
The notice followed an RCMP investigation of
Nizar Zakka, a citizenship consultant, his firm, Decision Immigration 2000
Inc., and his partners. It is alleged that clients of these consultants and
firm, including Mr. Bidewi, used their services to misrepresent their residence
in Canada in order to obtain Canadian citizenship.
[44]
On March 2, 2012, Mr. Bidewi requested that the
matter be referred to the Federal Court. The Minister did not refer the matter
to the Federal Court in the 3 years and 88 days that followed before the Strengthening
Canadian Citizenship Act came into force. However, on August 11, 2015, 75
days after it came into force, the Minister issued a notice under the Amended
Act to Mr. Bidewi.
[45]
The Second Revocation Notice, in relevant part,
is identical to that issued to Mr. Monla.
[46]
It appears from the record that all of the
supporting information and documents referenced in the Second Revocation
Notices predate the issuance of the Initial Revocation Notice provided on
December 6, 2011, save for recent internet searches.
T-1584-15
(HASSOUNA)
[47]
Mr. Hassouna was born in Lebanon. He became a
permanent resident of Canada on September 17, 2001. In his application for
citizenship dated May 24, 2005, he declared to have been absent from Canada for
92 days and declared he has been physically present in Canada for 1252 days.
He became a Canadian citizen on April 19, 2006 and began the process to sponsor
his wife Lina Emad Al Saber, and his son Waleed Abdulla Hassouna, to come to
Canada.
[48]
On February 5, 2012, pursuant to subsection
18(1) of the Former Act, the Minister served a revocation notice on Mr. Hassouna
on the basis that he had failed to disclose all of his absences from Canada and
had provided false information with respect to his residence during the four
years immediately preceding his citizenship application.
[49]
The notice followed an investigation arising
from the sponsorship applications made for his wife and son. That
investigation concluded that Mr. Hassouna had been continuously resident in Kuwait
during the relevant period prior to obtaining his citizenship.
[50]
On February 13, 2012, Mr. Hassouna requested
that the matter be referred to the Federal Court. The Minister did not refer
the matter to the Federal Court in the 3 years and 105 days that followed
before the Strengthening Canadian Citizenship Act came into force. However,
on July 13, 2015, 46 days after it came into force, the Minister issued a
notice under the Amended Act to Mr. Hassouna.
[51]
The Second Revocation Notice, in relevant part,
is identical to that issued to Mr. Monla.
[52]
It appears from the record that all of the
supporting information and documents referenced in the Second Revocation
Notices predate the issuance of the Initial Revocation Notice provided on
February 2, 2012.
T-1696-15 (NADA)
[53]
Mr. Nada was born in Egypt. He became a
permanent resident of Canada on April 9, 1997. In his application for
citizenship, he declared to have been absent from Canada for 165 days and
declared he has been physically present in Canada for 1096 days. He became a
Canadian citizen on January 22, 2002.
[54]
On August 19, 2015, Mr. Nada was served with a
notice of revocation under the Amended Act on the basis that he had failed to
disclose all of his absences from Canada and had provided false information
with respect to his residence during the four years immediately preceding his
citizenship application.
[55]
The notice states that on October 8, 2003, the
Minister received information that appeared to contradict Mr. Nada’s declaration
concerning residency on his citizenship application and the matter was referred
to the Case Management Branch of Citizenship and Immigration on November 6,
2003, to initiate revocation proceedings. Mr. Nada received no notice of
revocation under the Former Act. No explanation is provided for failing to
serve a notice of revocation under the former Act during the 11 year and 233
day period prior to the Amended Act coming into force.
[56]
Mr. Nada was served with a notice of revocation
under the Amended Act on August 19, 2015, 83 days after it came into force.
The
Minister’s Motions to Strike
[57]
I propose to address first the Minister’s
motions to dismiss these applications.
[58]
The Minister submits that the present
applications are premature and ought to be struck. It is submitted that the
notices issued under the Former Act were extinguished by operation of law
pursuant to the provisions of the Strengthening Canadian Citizenship Act.
The Minister further submits that there has not yet been any decision made to
revoke the citizenship of these applicants and that they have the opportunity
under the Amended Act to make submissions to the Minister as to whether any
revocation ought to happen. He argues that the applicants “ought to exhaust that remedy prior to seeking the remedy
from the Court.”
[59]
The Minister accepts that the test to strike a
notice of application for judicial review is a high one. The parties and the
Court accept that the test the Minister must meet is that most recently stated
by the Federal Court of Appeal in Canada (Minister of National Revenue) v JP
Morgan Asset Management (Canada ) Inc, 2013 FCA 250, [2014] 2 FCR 557 at
para 47:
The Court will
strike a notice of application for judicial review only where it is “so clearly
improper as to be bereft of any possibility of success”: David Bull
Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600
(C.A.). There must be a “show stopper” or a “knockout punch” – an obvious,
fatal flaw striking at the root of this Court’s power to entertain the application:
Rahman v. Public Service Labour Relations Board, 2013 FCA 117 at
paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA
286 at paragraph 6; cf.. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
The applicants
submit that it is neither “clear” nor “obvious,” as the Minister suggests, that the Initial
Revocation Notices provided to applicants in the Initial Revocation Judicial
Review Applications, save T-1696-15 (NADA), were extinguished by the
transitional provisions of the Strengthening Canadian Citizenship Act.
They further submit that, even if the Initial Revocation Notices have been
cancelled by operation of law, the issuance of the Second Revocation Notices
constitutes an abuse of process because the Minister failed to take the action
available to him and requested by the applicants to refer the Initial
Revocation Notices to the Federal Court under the Former Act. They submit that
the Minister’s action in this regard, coupled with the delay that has occurred,
has deprived them of rights they had under the Former Act and constitutes an
abuse of process warranting the quashing of the Second Notices of Revocation.
Lastly, they submit that, while the administrative process currently challenged
has not been completed, the facts at hand constitute “most
unusual and exceptional circumstances” warranting the Court’s
intervention: Air Canada v Lorenz, [2000] 1 FCR 494 at para 12; Almrei
v Canada (Minister of Citizenship and Immigration), 2014 FC 1002 at para 34.
[60]
When a judge has determined, as I have in this
case, that a motion to strike should be dismissed, the less said the better
because the merits of the parties’ positions will subsequently be determined
after a full hearing on the evidence presented.
[61]
In my view, the Minister’s motions must be
dismissed because he has failed to establish that these applications for
judicial review are bereft of any possibility of success.
[62]
It cannot be said to be beyond doubt at
this stage of the process that the Initial Revocation Notices provided by the
Minister to all but one of the applicants have been extinguished by operation
of law. The Minister relies on subsection 40(4) of the Strengthening
Canadian Citizenship Act as the basis for his submission that the Initial
Revocation Notices have been extinguished. That transitional subsection
provides, in relevant part: “If, before the coming into
force of section 8, a notice has been given under subsection 18(1) of the
Citizenship Act, as that subsection read immediately before that coming into
force, and the case is not provided for under section 32 or any of subsections
(1) to (3), the notice is cancelled and any proceeding arising from it is
terminated on that coming into force, in which case the Minister, within the
meaning of that Act, may provide the person to whom that notice was given a
notice under subsection 10(3) of that Act …”
[63]
The applicants submit that subsection 40(4) does
not apply because subsection 40(1) applies to the facts here. Subsection 40(1)
provides, in relevant part: “A proceeding that is
pending before the Federal Court immediately before the day on which section 8
comes into force … is to be dealt with and disposed of in accordance with that
Act, as it read immediately before that day.”
[64]
The submission of the applicants is that the Initial
Revocation Notices issued by the Minister under the Former Act coupled with
their request that the revocation be referred to the Federal Court creates a “proceeding that is pending before the Federal Court”
even though the Minister has not (yet) referred the matter to the Federal
Court. In support of that submission, the applicants point to two decisions of
this Court: Canada (Minister of Citizenship and Immigration) v Walid Zakaria,
2015 FC 1130 [Zakaria], and Canada (Minister of Citizenship and Immigration)
v Rubuga, 2015 FC 1073 [Rubuga].
[65]
Zakaria was an
appeal of a decision of a Prothonotary dismissing the Minister’s motion to
amend the pleadings in a citizenship revocation action commenced by the
Minister under the Former Act. The claims the Minister sought to include were
allegations that had been contained in the Notice of Revocation but had not
been included in the Statement of Claim. In dismissing the Minister’s appeal,
Justice Russell observed at para 5:
The purportedly “new” claims against [one of
the defendants] are not, in fact, new. Identical allegations were made in the
Notice of Revocation. The Minister made the allegations in the Notice of
Revocation which began the legal process and then omitted them from the
Statement of Claim [emphasis added].
[66]
The applicants submit that this decision
supports their view that “once the Minister makes
allegations in the notice of intent of revocation, the legal process begins and
the proceeding is to be deemed as ‘pending’.”
[67]
In Rubuga the Minister moved for default
judgment in its action for a declaration that Mr. Rubuga had obtained Canadian
citizenship by false representation or fraud or by knowingly concealing
material circumstances contrary to the Former Act. The Minister alleged that,
when he obtained refugee status and permanent resident status, Mr. Rubuga
concealed that he had participated in the genocide that occurred in Rwanda
between April and July 1994. It was argued that, had Mr. Rubuga disclosed this
information about his past, he would not have been permitted to remain in
Canada and would not have been granted Canadian citizenship.
[68]
The Court found that the Minister sent the
defendant a notice of intention to recommend that the Governor in Council
revoke his citizenship on March 28, 2014. Mr. Rubuga requested that the matter
be referred to the Federal Court. The Minister initiated the Federal Court
proceeding 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.” The
then-solicitor did not accept service of the statement of claim as provided for
in Rule 146, and soon thereafter advised the Minister that he had ceased
representing the defendant.
[69]
The Court noted that Mr. Rubuga did not appear
on the motion and had not been personally served with the statement of claim
and proceeded to inquire “whether the defendant was
served in due form and whether it is appropriate to continue in his absence.”
The Court turned to the Federal Court Rules for guidance. Subsection 127(1)
of the Rules provides that an originating document “shall be served personally” but subsection 127(2) carves
out an exception by providing that “A party who has
already participated in the proceeding need not be personally served.”
The question addressed by Justice Gleason was whether Mr. Rubuga had “already participated in the proceeding” such that
personal service was not required.
[70]
Justice Gleason found that he had already
participated in the proceeding. She writes at para 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.
[71]
The applicants submit that Rubuga
supports its position that a proceeding under the Former Act is “pending from the moment the notice is issued and even
prior to the issuance of the statement of claim, because once the notice is
issued the revocation proceeding is pending as it is awaiting further action by
the Respondent, namely the issuance of the statement of claim” [emphasis
in the original].
[72]
In response, the Minister submits that the
jurisprudence is clear that “a court proceeding must be
a matter that began with an originating document” and that absent the
issuance of a statement of claim under the Former Act, there can be no
proceeding pending in the Federal Court. The authorities relied on by the
applicants, he says, must be read in context and do not support that the
issuance of the notice of intention to revoke citizenship under the Former Act
initiates “a proceeding that is pending before the
Federal Court” as described in subsection 40(1) of the Strengthening
Canadian Citizenship Act.
[73]
I agree with the Minister that it is clear from
jurisprudence and from Rule 62 of the Federal Courts Rules that a proceeding
is commenced by the issuance of an originating document. However, subsection
40(1) of the Strengthening Canadian Citizenship Act speaks to a proceeding
that is pending before the Federal Court and not to a proceeding before
the Federal Court and this suggests that a pending proceeding may, as the
applicants submit, be something other than a proceeding that has been commenced
by the issuance of an originating document. It may be that a proceeding is
pending once the recipient of the notice requests a referral to the Federal
Court. It is not plain and obvious to me, in the context of revocation of
citizenship, that the applicants’ assertion that there is a pending proceeding
involving them within the meaning of subsection 40(1) of the Strengthening
Canadian Citizenship Act, is bereft of any chance of success.
[74]
I also observe that, while the Minister has not
made any final decision as to whether to revoke the applicants’ citizenship, he
has, as was rightly conceded by counsel, made the decision that the
transitional provision in subsection 40(1) of the Strengthening Canadian
Citizenship Act does not apply to the applicants. If he is in error in
that decision, then the Second Revocation Notices he has issued under the
Amended Act are a nullity, and the process he intends to follow, in appropriate.
[75]
Because the applicants’ position with respect to
the proper application of the transitional provisions cannot be said to be
bereft of any possibility of success, the Minister’s motion to strike the
pleadings in those applications where the Minister issued an Initial Revocation
Notice under the Former Act and a request was made to refer the matter to the
Federal Court cannot succeed.
[76]
There remains for consideration the one application
where there was no Initial Revocation Notice issued, T-1696-15 (NADA).
[77]
In addition to claims that the relevant
provisions of the Amended Act violate the Charter and Bill of Rights,
Mr. Nada seeks an order quashing the Minister’s notice of intent to revoke his
citizenship “due to abuse of process, stemming from
delay, both pursuant to section 7 [of the Charter] and pursuant to
administrative principles.” In the notice of intention to revoke Mr.
Nada’s citizenship the Minister acknowledges that on October 8, 2003, he was
provided with information that Mr. Nada may have obtained his citizenship
because of fraud or misrepresentation. Despite the Minister referring this
information to his Case Management Branch on November 6, 2003, to initiate
revocation proceedings, no such proceeding was initiated until the notice under
the Amended Act was provided to Mr. Nada on August 19, 2015 – nearly 12 years
later.
[78]
The Minister had provided no information or
explanation for this extremely lengthy delay in initiating proceedings. Mr.
Nada alleges that he has suffered prejudice due to lost evidence and
recollection of events that occurred so long ago. It may be that the Minister
will be able to provide a sufficient explanation of his actions in the
preceding decade, and it may be that Mr. Nada will not be able to convince a
judge that he has or is likely to suffer prejudice arising from the delay.
However, at this point, based on the record before the Court, it cannot be said
that Mr. Nada’s claim that the notice ought to be struck as an abuse of process
by the Minister is bereft of any chance of success. Accordingly, and for this
reason alone, the Minister’s motion to strike Mr. Nada’s application must be
dismissed.
[79]
In each of the Initial Revocation Judicial
Review Applications, it is alleged that the revocation procedure provided for
in the Amended Act violates the rights to liberty and security of the person in
section 7 of the Charter, and the right to a fair hearing under
paragraph 2(e) of the Bill of Rights. These claims are premised on the
fact that the citizenship revocation process under the Amended Act does not require
that the Minister to disclose to the affected person all relevant information
in his possession, does not provide the affected person with a hearing before
an independent and impartial decision-maker, and does not guarantee an oral
hearing in all circumstances where it is required.
[80]
The Minister submits that the applicants’ real
complaint is that the procedure under the Former Act is no longer available to
them and says that fact is insufficient to support the alleged breaches. I
agree with the Minister that the mere fact that the more formal process has
been changed does not in itself support the claims of breaches of the Charter
and Bill of Rights. However, the allegations raised regarding the
alleged deficiencies in the procedure provided to persons facing revocation of
Canadian citizenship under the Amended Act cannot be said to be frivolous or
vexatious, nor can it be said that they are bereft of any possibility of
success. Administrative law principles alone are sufficient to address the
Minister’s argument. The more serious the consequences to an individual, the
greater the need for procedural fairness and natural justice. Revocation of
citizenship for misrepresentation and fraud is a very serious matter and the
allegations made by these applicants, although they may ultimately not succeed,
raise a case demanding a response from the Minister.
[81]
Lastly, the Minister submits that the Charter
and Bill of Rights challenges ought to be determined on a complete
record which will only be available following the conclusion of the revocation
process the Minister takes under the Amended Act. It is arguable that
additional evidence will be obtained that may be relevant if these challenges
are determined at the end of the revocation process, such as whether the
applicants are ultimately granted an oral hearing, and facts related to the
decision-making procedure used by the Minister and, in particular, the degree
of independence enjoyed by the delegate who makes the revocation decision. However,
it is also arguable that these facts are not relevant to the constitutionality
of the process itself, but simply to the fairness of particular decisions that
the Minister might make pursuant to that process.
[82]
In any event, the underlying applications deal
with much more than the Charter and Bill of Rights issues. If
the applicants who received an Initial Revocation Notice are ultimately
successful in persuading this Court that they fall under the Former Act and not
the Amended Act, then these constitutional challenges do not arise at all.
Similarly, these challenges do not arise if Mr. Nada is successful in
persuading the Court that it would be an abuse of process if the revocation
process were to continue.
[83]
Generally, the Minister’s submissions are valid
– the applications should neither be determined on an incomplete record and the
issues raised ought not to be split. However, in the very unique circumstances
before the Court, considering the serious possibility that these constitutional
issues may not need to be determined, and the impact on these applicants if the
revocation process proceeds and is subsequently found to have been a nullity or
an abuse of process, I am persuaded that even if the Charter and Bill
of Rights issues may have to be determined subsequently on a complete
record, justice demands that the judicial review applications (to the extent
possible) be determined before the revocation process proceeds further. It may
be that the judge hearing these applications will determine that while he or
she can determine most of the issues raised, he or she is unable or should not
determine the constitutional issues on the record then before the Court. If
all of the other issues raised by these applicants are determined in favour of
the Minister, then the judge may decide to postpone those constitutional issues
until after the revocation process has been completed and on the record as it
is then. However, the alleged constitutional breaches focus on the process and
procedure the Amended Act mandates, and at this point they are not obviously
dependant on any factual evidence that may be disclosed following the
revocation process. None of the other issues raised are at all dependant on
the factual evidence that may be disclosed in the revocation process but may be
determined on a record that includes affidavit evidence. In these
circumstances, and given the potential serious consequences to the applicants,
the determination of the judicial review application should not have to await
the final disposition of the revocation process.
The Applicants’
Motions to Stay the Revocation Proceedings
[84]
In order to be granted a stay, the applicants
must meet a tri-partite test: (1) that an issue that is neither frivolous or
vexatious has been raised, (2) that irreparable harm will occur to the
applicant in the interim period between the date of the motion and the
disposition of the application if the stay is denied, and (3) that the balance
of convenience rests with the applicant.
[85]
The previous conclusion that the applications
are not bereft of any possibility of success is sufficient to establish that at
least one serious issue has been raised. These include: whether the transition
provisions dictate that the revocation notices are a nullity; whether the
notices should be quashed as an abuse of process; and whether the revocation procedure
under the Amended Act violates the Charter, the Bill of Rights,
and general administrative law principles.
[86]
In all but one of the applications, the Minister
commenced revocation proceedings under the Former Act but chose not to refer
the matter to the Federal Court for decision. Those applications allege that,
in light of the Minister’s failure to proceed with his applications under the
Former Act, his new notices are a nullity and further constitute an abuse of
process. In the remaining application, T-1696-15 (NADA), the notice is
accepted as validly issued according to the terms of the Amended Act but it is
asserted that the Minister has engaged in an abuse of process in delaying
serving it for more than a decade.
[87]
I agree with the applicants that subjecting them
to the process under the Amended Act prior to the determination of the validity
of the notices subjects them to a process which may be found to be invalid and
unconstitutional. I also agree that there is an air of reality to the
allegations that the proceedings constitute an abuse of process. Lastly, I
accept that requiring the applicants to participate in a process which requires
that they disclose their case by responding to the new notices may well prejudice
them if it is later determined that they ought to have been before the Federal
Court in an action where the Minister bears the burden of proof. I accept that
each of these real possibilities creates the likelihood that the failure to
stay the revocation proceedings pending the disposition of the judicial review
applications will constitute irreparable harm.
[88]
I am also satisfied that the balance of
convenience does not rest with the Minister. He had every opportunity to
initiate proceedings many years ago to strip these applicants of their
citizenship but chose or failed to do so. He cannot reasonably now say that he
and Canada will be prejudiced by the delay that will be caused in granting the
stay when he himself has been responsible for years and years of delay in
taking steps to advance these proceedings.
[89]
For these reasons, an order will issue in each of
the Initial Revocation Judicial Review Applications dismissing the Minister’s
motion to strike the application, and granting the applicant’s motion to stay
the revocation proceedings pending final disposition of the judicial review
application.
Email this Content