Docket: T-1584-15
Citation:
2016 FC 1189
Ottawa, Ontario, October 25, 2016
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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ABDULLA AHMAD
HASSOUNA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
This is one of the Lead Cases on which the Court
will rule on three constitutional questions arising out of the amendments to
revocation of Canadian citizenship as a consequence of the Strengthening
Canadian Citizenship Act, SC 2014, c 22: See Monla v Canada (Minister of
Citizenship and Immigration), Court File T-1570-15, Order dated February
23, 2016, amended March 29, 2016.
[2]
The Applicant seeks to strike parts of three of
the affidavits filed by the Respondent on the basis that the impugned parts are
based on information and belief and not on direct knowledge, they rely on
hearsay, and/or they make legal conclusions.
[3]
The Respondent opposes the motion. The Minister
submits that the motion should not be entertained at this time, but left to the
judge hearing the constitutional challenge, which is scheduled over three days
in Toronto commencing November 15, 2016. To the extent that the Court
considers the motion, he submits that it ought to be dismissed as the impugned
parts of the affidavits are not objectionable.
[4]
I agree with the Respondent’s submission that
the general rule is that motions such as this ought to be left to the hearings
judge, as was stated by the Federal Court of Appeal in Canadian Tire Corp v
PS Partsource Inc, 2001 FCA 8 at para 18:
Nonetheless, I would emphasize that motions
to strike all or parts of affidavits are not to become routine at any level of
this Court. This is especially the case where the question is one of relevancy.
Only in exceptional cases where prejudice is demonstrated and the evidence is
obviously irrelevant will such motions be justified. In the case of motions to
strike based on hearsay, the motion should only be brought where the hearsay
goes to a controversial issue, where the hearsay can be clearly shown and where
prejudice by leaving the matter for disposition at trial can be demonstrated.
[5]
As set out below, I find that none of the
impugned paragraphs fall within the exceptions above-stated. However, having
heard the parties submissions on the motion, I am of the view that it is in the
interest of an efficient hearing, that I set out those paragraphs challenged by
the Applicant that I have found are not objectionable, and leave the few
remaining challenges for the hearing Judge.
[6]
I do not agree with the Applicant that Amélie
Laporte-Lestage, in paragraphs 23 – 25 of her affidavit, is expressing a legal
opinion. Although she uses the terms ‘independence’
and ‘impartial’ she explains in the impugned
paragraphs what she means by those terms by giving examples of her work. The
weight to be given to those statements is a matter for the hearing Judge.
[7]
The Applicant objects to large portions of the
affidavit of Michelle Tremblay because on cross-examination (Motion Record
pages 311-312) she states that the source of her information before she assumed
her position in April 2015 as Assistant Director of the Citizenship and
Passport Cases Division, was by reading an affidavit of her predecessor,
Rosemary Redden and from “discussions … had over the
years with other managers and colleagues.” When asked, she stated that
these sources of information are no longer in the “Revocations
Unit” of the Ministry.
[8]
In Smith Kline & French Laboratories Ltd
v Novopharm Ltd, (1984), 53 NR 68 (FCA), the Federal Court of Appeal
instructed that “personal knowledge” of an
affiant is to be assessed “in the reality of the
surrounding circumstances” including the affiant’s position:
I accept that when an affidavit attests to
facts to "the best of" the deponent's knowledge, it is legitimate to
question whether that is properly to be construed as tantamount to saying
"to the best of my knowledge, information and belief". The answer to
that is not, in my view, to be found in an abstract analysis of dictionary
definitions. It is rather to be found in the reality of the surrounding
circumstances. It depends, among other things, on the office or qualifications
of the deponent and whether it is probable that a person holding such office or
having such qualifications would, of his own knowledge, be aware of the
particular facts. If such a probability is apparent on the face of the
affidavit, its exhibits and the application to which it pertains, I think the
Commissioner is quite entitled, in a proper exercise of his discretion, to
accept the evidence as being facts within the deponent’s personal knowledge.
[9]
The impugned paragraphs fall under the following
headings: Overview of the Government’s Goals for IRCC and Operational Planning;
Overview of Citizenship Grants and Applications Program; Citizenship Application
Processing for Permanent Residents Under the Former Legislation; Structure of
the Citizenship Revocation Operations Prior to the Amendment of the Citizenship
Act; Citizenship Program Audit in 2010; Citizenship, Investigations and
Revocations Unit (CIR) 2010 Restructuring; and Citizenship Litigation.
[10]
Ms. Tremblay attests that she has knowledge of
the current citizenship program, has consulted with colleagues who were
responsible for reviewing citizenship revocations under the former provisions,
and has reviewed audits of the citizenship program. It is on these bases that
she has “knowledge” of the matters she attests
to except where she states her knowledge to be based on information and
belief. The only portions of her affidavit she says are based on information
and belief is set out at paragraph 22 of her affidavit:
My knowledge of citizenship revocation
operations prior to my involvement with the CPCD is based on information
and belief as I was not directly involved with citizenship prior to August 2013.
[emphasis added]
[11]
In my view, it may be that parts of paragraphs
27, 30 - 37, and 38 - 44 provide information regarding “citizenship
revocation operations” of the Department prior to August 2013 and thus
it may be, as the affiant acknowledges, that her statements are not within her
knowledge. However, I agree with the Respondent that whether these paragraphs
ought to be considered will depend on the use, if any, the Respondent puts them
to in his memorandum, which has yet to be filed. This is a question best left
for the hearing Judge. On the other hand, the other paragraphs objected to by
the Applicant (paragraphs 5 – 26, 28 - 29, 45 – 64, and 70, in my view, are
statements within her knowledge as a senior employee of the Respondent and
cannot be struck.
[12]
Teny Dikranian is the Director of Citizenship
Legislation and Program Policy, and has been so since February 19, 2015. Prior
to that date and since March 2014, she was the Assistant Director of
Citizenship Legislation and Program Policy. She has been with the Respondent’s
department since 2005.
[13]
She was asked if she had personal knowledge of
anything that happened prior to 2014. She explained that while she was not
involved in revocation matters prior to 2014, she has “knowledge”
of what happened because she is “aware of what went on
prior to my time” (Motion Record pages 385-386). Her affidavit speaks
to the various matters under the following headings: History of Citizenship
Revocation Legislation in Canada; Prioritization of Granting Citizenship; Fair
and Objective Criteria to Obtain Citizenship; Canadian Citizenship Provides a
Number of Benefits; Enhanced Program Integrity Through Legislative Reform and
Business Practices; Fraud Identified in the Citizenship Program; Road to
Legislative Reform; 2012-2103; Parliament Enacted the Strengthening Canadian
Citizenship Act; Transitional Provisions; Procedural Fairness is Integral
to the Administrative Process; and The Government Must Pursue its Objective of
Program Integrity in a Timely Manner.
[14]
Given her position, it is hardly surprising that
she has “knowledge” of the current and former
legislation and the legislative processes that were undertaken. It is also to
be expected that she would know why, in the Department’s view, changes were required
and what changes were made. The only problematic paragraph, in my view, is
paragraph 32 where she references, based on information and belief, that there
were “problems identified with record keeping over the
years” and other issues within IRCC. Whether that paragraph should be
struck is best left to the hearing Judge; however, the remainder of the
impugned paragraphs (3 – 18, 23 – 31, 33 - 47, and 56 – 57) are not
objectionable as they are within this affiant’s knowledge given her position
within the Respondent’s Department.
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