Canada (Minister of Citizenship and Immigration) v.
Campbell
Between
The Minister of Citizenship and Immigration, Plaintiff, and
Chibanbo Abonie Campbell, Defendant
The Minister of Citizenship and Immigration, Plaintiff, and
Chibanbo Abonie Campbell, Defendant
[2014] F.C.J. No. 30
2014 FC 40
Docket T-187-12
Federal Court
Toronto, Ontario
de Montigny J.
Heard: September 24, 2013.
Judgment: January 15, 2014.
Docket T-187-12
Federal Court
Toronto, Ontario
de Montigny J.
Heard: September 24, 2013.
Judgment: January 15, 2014.
(21 paras.)
· REASONS FOR ORDER AND ORDER
1 de
MONTIGNY J.:-- This is a motion,
pursuant to s. 213 of the Federal Courts Rules, SOR/98-106, and s. 18(1)(b) of the Citizenship
Act, RSC 1985, c C-29 (the "Citizenship Act") for summary judgment
on the Plaintiff's claim, issued January 18, 2012. In essence, the Minister
seeks an order declaring that the Defendant obtained his Canadian citizenship
by knowingly concealing material circumstances because he failed to advise a citizenship
official that he was charged with an indictable offence prior to obtaining his
Canadian citizenship. If the Minister is successful in the action, he will then
be entitled, pursuant to s. 10(1) of the Citizenship Act, to make a report to the Governor in Council which, if accepted,
will result in the Defendant ceasing to be a Canadian citizen.
2 In
this motion, the Minister asks the Court to grant summary judgment and issue
the declaration it seeks in the action, on the basis that there is no arguable
issue for trial and that the action should not proceed further. Having
carefully considered both the arguments submitted by the parties and the
record, I have come to the conclusion that the Minister's motion for summary
judgment must be granted.
Facts
3 The
Defendant was born in Kingstown, St. Vincent and Grenadines, on October 4,
1982. He became a permanent resident of Canada on January 18, 2000.
4 The
Defendant completed an adult application for Canadian citizenship on March 20,
2003. The citizenship application, consistent with the legislative provisions,
contained a warning that Canadian citizenship shall not be granted while the
applicant is charged with an indictable offence and that applicants must inform
citizenship officials of pending charges for indictable offences. Section 11 of
the application form reads as follows:
· I agree to advise Citizenship and Immigration Canada if any
information on this form changes before I take the Oath of Citizenship. I
understand the contents of this form. I declare that the information provided
is true, correct, and complete, and that the photographs enclosed are a true
likeness of me. I understand that if I make a false declaration, or fail to
disclose all information material to my application, I could lose my Canadian
citizenship and be charged under the Citizenship Act.
· I have indicated in Section 8 whether the prohibitions apply to
me.
5 On
June 6, 2003, less than three months after completing his citizenship
application, the Defendant was charged with various indictable offences,
including trafficking in cocaine and possession of cocaine for the purposes of
trafficking, contrary to s. 5(1) of the Controlled Drugs
and Substances Act, SC 1996, c 19. The Defendant was
further charged with trafficking on October 3, 2003.
6 On
December 11, 2003, the Defendant was advised that his application was approved
and invited to supply further information. On March 23, 2004, the Defendant
took the oath of citizenship and became a Canadian citizen, having declined to
disclose the pending criminal charges against him. The oath the Defendant
signed contains a confirmation that the Defendant has no pending charges. The
Defendant was eventually convicted of trafficking in cocaine on November 12,
2004, after having entered a guilty plea on that charge; the other two charges
against him were withdrawn at the request of the Crown.
7 On
August 25, 2005, the Defendant was charged with unlawfully procuring Canadian
citizenship by failing to disclose his pending charges for cocaine trafficking.
On July 3, 2007, the Defendant was convicted of the offence with which he had
been charged under the Citizenship Act, namely that he knowingly concealed a material circumstance, by
failing to advise a Citizenship official that he was charged with an indictable
offence prior to obtaining his Canadian Citizenship, contrary to paragraph
29(2)(a) of the Citizenship Act.
He was also charged a victim surcharge of $1,000.
8 In
his reasons released on November 20, 2007, the judge of the Ontario Court of
Justice concluded that he was satisfied beyond a reasonable doubt that the
Defendant knowingly concealed material circumstances in order to procure
Canadian citizenship. More specifically, he stated:
· On all of the evidence, including Mr. Campbell's own evidence, I am
not left with a doubt that Mr. Campbell knew that he was required to tell
Citizenship and Immigration Canada about his criminal charges. From the day he
was charged, until the day he swore his oath of citizenship, he knew he had an
obligation to disclose this information to the proper authorities. For whatever
reason, he failed to do so. I reject beyond a reasonable doubt the contention
that Mr. Campbell was honestly mistaken about his obligations under the Act and
how to fulfill them...
· Reasons for Judgment, at p 7. Exhibit "I" to the Affidavit
of Paulette Haughton, Plaintiff's Motion Record, at p 51.
9 The
Defendant was given notice in accordance with section 18 of the Citizenship Act of the Minister of
Citizenship and Immigration's intent to revoke his citizenship. The Notice was
dated September 20, 2011. Consistent with the Defendant's request, the matter
was then referred to the Federal Court pursuant to s. 18 of the Citizenship Act.
Issue
10 The
only issue raised by this motion is whether summary judgement should be granted
in favour of the Plaintiff. In other words, has the Plaintiff satisfied the
Court that there is no genuine issue of fact or law for trial?
Analysis
11 No
person who is charged with an indictable offence under any Act of Parliament
may be granted citizenship or take the oath of citizenship: Citizenship Act, at paragraph 22(1)(b).
Indeed, the notice to appear to take the oath of citizenship includes a warning
that anyone charged with an offence under the Criminal
Code, RSC 1985, c C-46, or other enactment is
ineligible to take the oath of citizenship. The notice advises as well that
anyone in this circumstance must inform the citizenship office. The Defendant was
first notified that he met the requirements for citizenship on December 11,
2003 and was given a notice to appear to take the oath of citizenship on
January 15, 2004. This notice, however, was returned undeliverable and a new
notice was provided, with a new oath date of March 23, 2004. The Defendant
claimed that the second notice did not contain the above-mentioned warning, but
there is no evidence on the record to confirm the allegation. There is no
reason to believe that the second notice would not have been similar to the
first one and would not have contained the same warning, as it appears to be a
standard form.
12 Where
the Governor in Council, on a report from the Minister, is satisfied that any
person has obtained, retained, renounced or resumed citizenship under the Citizenship Act by false representation or
fraud or by knowingly concealing material circumstances, the person ceases to
be a citizen: Citizenship Act,
paragraph 10(1)(a). Paragraph 18(1)(a) and (b) of the Citizenship
Act reads as follows:
(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
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
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.
* * *
(1) Le ministre ne peut
procéder à l'établissement du rapport mentionné à l'article 10 sans avoir
auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou
l'autre des conditions suivantes ne se soit réalisée :
l'intéressé n'a pas,
dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi
de l'affaire devant la Cour;
la Cour, saisie de
l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou
dissimulation intentionnelle de faits essentiels.
13 Therefore,
the Court does not revoke citizenship. It only makes a declaration, which can
enable the Governor in Council to do so at some subsequent time. It is
important to note that the Defendant will be entitled to make submissions to
the Governor in Council before his citizenship is revoked, and may also seek
judicial review of such a decision.
14 When
a party brings a motion for summary judgment, the Court must determine whether
there is a genuine issue for trial with respect to a claim or defence. The
purpose of summary judgment is to allow the Court to summarily dispense with
cases which ought not to proceed to trial because there is no genuine issue to
be tried. The test is not whether a party cannot possibly succeed at trial;
rather, it is whether the case is so doubtful that it does not deserve
consideration by the trier of fact at a future trial. As such, summary judgment
is not restricted to the clearest of cases. See: ITV
Technologies Inc v. WIC Television Ltd, 2001 FCA 11, at
paras 4-6; Premakumaran v. Canada, 2006 FCA 213, at paras 9-11; Canada (MCI)
v. Schneeberger, 2003 FC 970, at para 17.
15 The
record shows that the Defendant was charged, that he was warned about his duty
to disclose charges, that he did not do so and proceeded to take the oath of
citizenship. His defence does not dispute any of these facts. The Defendant
claims, however, that he was not aware that he must inform Citizenship and
Immigration Canada (CIC) that he had been charged while his citizenship
application was pending, and that in any event, the police would inform CIC if
it impacted his citizenship application.
16 The
Defendant's defence amounts to a collateral attack on a final decision of a
criminal court of competent jurisdiction in an attempt to re-litigate an issue
that has already been tried and is an abuse of process. The facts necessary for
this Court to make the order the Plaintiff seeks have already been found on the
criminal standard of proof, in the context of the proceedings against the
Defendant in the Ontario courts. The Defendant has been convicted of the
offence of knowingly concealing material circumstances in obtaining his
citizenship. Evidence of a conviction for knowingly concealing material
circumstances for the purpose of obtaining citizenship is proof in a reference
proceeding, such as the case at bar.
17 The
Ontario Court of Justice rejected the argument that Mr. Campbell discharged his
obligation by cooperating with the arresting police officers, and his further
claim that he had discharged his obligation by telling the police about his
dealings with CIC. There is therefore no need to say more about these
submissions. As for his (somewhat contradictory) submission that he was not
aware of his obligation, it should have been made before the Ontario Court of
Justice. The Defendant had the opportunity to challenge the charge of
misrepresentation, he could have called witnesses and he could have argued that
he did not "knowingly" conceal material circumstances. Yet, it
appears from the reasons of the Ontario Court of Justice that "Mr.
Campbell did not testify to any misunderstanding as to his obligations while
his application for citizenship was pending" (Reasons, p 2; Plaintiff's
Motion Record, p 46). This proceeding is not an appeal of the decision of the
Ontario Court of Justice; once again, the Defendant cannot launch a collateral
attack on a final decision of a provincial criminal court. See: Canada (MCI) v. Copeland, [1998] 2 F.C. 493; Canada (MCI) v. Kawash, 2003 FCT 709, at
paras 12-16.
18 The
Defendant also complains about an alleged delay in the bringing of revocation
proceedings. He submits that the Plaintiff became aware or ought to have become
aware in August 2005 that the Defendant may have obtained the Canadian
citizenship by failing to disclose his pending charges for cocaine trafficking,
but did not issue its Notice in Respect of Revocation of Citizenship until
September 2011. The Defendant argues that the Plaintiff's six years delay
amounts to an abuse of process that is sufficient to stay the revocation
proceedings.
19 Even
assuming that the relevant time period for determining delay is the period
between when the government became aware of the fraud and the issuance of the
statement of claim, as opposed to the period between the notice of revocation
being sent to the applicant and the date when the referral proceedings began as
decided in a number of cases (Canada (MCI) v. Obodzinsky, 199 F.T.R. 1, at paras 26-35; Canada (MCI)
v. Kawash, 2003 FCT 709, at para 16; Canada (MCI) v. Copeland, [1998] 2 F.C. 493),
I am unable to find that the delay the Defendant complains of amounts to an
abuse of process. In Canada (MCI) v. Parekh, 2010 FC 692, Justice Tremblay-Lamer came to the conclusion that
three factors have to be balanced in assessing the reasonableness of an
administrative delay: (1) the time taken compared to the inherent time
requirements of the matter; (2) the causes of the delay beyond the inherent
requirements of the matter; and (3) the impact of the delay.
20 The
case at bar was not a complex one and did not require further investigation.
Moreover, the Minister offered no explanation for the delay in processing the
revocation. These first two factors therefore weigh in favour of the Defendant.
However, the Defendant has been unable to show that he was prejudiced by the
delay. On the contrary, he has allegedly benefitted from the delay, however it
is calculated, as he has lived with his Canadian spouse, has fathered a child
and has been gainfully employed. Given the absence of evidence with respect to
the impact of the delay on the Defendant, the damage to the public interest in
the fairness of the administrative process should the proceeding go ahead would
not exceed the harm to the public interest in the enforcement of the
legislation if the proceedings were halted. I agree with the Minister that it
would be perverse that the Defendant be permitted to continue to enjoy that
which he fraudulently obtained, merely because he has so far enjoyed the
ill-gotten citizenship for several years.
Conclusion
21 For
all of the foregoing reasons, the Minister's motion is granted, and a
declaration will issue pursuant to subsection 10(1) and paragraph 18(1)(b) of
the Citizenship Act that the
Defendant obtained Canadian citizenship by false representation or fraud or by
knowingly concealing material circumstances. There will be no costs, as the
Minister provided no explanation for the delay in commencing this proceeding.
ORDER
THIS COURT ORDERS that the
Minister's motion for summary judgment is granted, without costs. The Court
declares that Chibanbo Abonie Campbell obtained Canadian citizenship by false
representation or fraud by knowingly concealing material circumstances.
de MONTIGNY J.
No comments:
Post a Comment