Date: 20030606
Docket: T-150-02
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
- and -
EYAD KAWASH A.K.A. EYAD FATHI HUSSEIN
Defendant
REASONS FOR ORDER AND ORDER
[1] The plaintiff brings this Rule 369 motion for two purposes: 1) to amend its statement of claim by replacing the words "On February 12, 1997" found at paragraph 11 of the statement of claim with the words "On November 22, 1996" and 2) to obtain summary judgment declaring that the defendant obtained his Canadian citizenship by knowingly concealing a material circumstance, namely, that he had been charged with an indictable offence. The request for leave to amend raises no issue and will be granted.
[2] The defendant, Eyad Kawash, formerly Eyad Hussein, is a Palestinian national born in Saudi Arabia on October 14, 1973.
[3] On May 18, 1993, he was granted permanent landing status. On September 21, 1995, the defendant applied for Canadian citizenship. The application that the defendant signed contained the following statement:
I am aware that if under any Canadian law I am charged with an indictable offence or put on probation before I take the oath of citizenship I must notify a citizenship official.
[4] On January 19, 1996, the defendant was charged with two counts of fraud, pursuant to section 380(1)(b) of the Criminal Code.
[5] Section 380(1)(b) is a hybrid offence which may be prosecuted either on indictment or on summary conviction, and thus is treated as an indictable offence: Ngalla v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 360.
[6] On January 24, 1996, the defendant took his oath of citizenship and became a Canadian citizen. Between the date he was charged and the date he took the oath, the defendant did not inform any citizenship officials that he had been charged with an indictable offence.
[7] On November 22, 1996, the defendant was convicted of the offence of knowingly concealing a material circumstance, specifically, failing to advise a citizenship official that he was charged with an indictable offence prior to obtaining his Canadian Citizenship, contrary to section 29(2)(a) of the Canadian Citizenship Act. He was sentenced to 120 days in custody.
[8] On February 14, 1997, the defendant was convicted of two counts of fraud. On May 10, 2001, the defendant was served with a Notice, pursuant to section 10(1) of the Citizenship Act with regard to revocation of his citizenship. On May 24, 2001, the defendant requested that the matter be referred to the Federal Court Trial Division, pursuant to section 18 of the Citizenship Act.
[9] The defendant argues that summary judgment should be granted only when there is no genuine issue to be tried. In this case, he argues, there is a genuine issue with regard to the issues of delay and intent to knowingly misrepresent.
[10] The defendant argues that the delay in over 4 years in commencing the revocation proceedings was unreasonable and resulted in prejudice to him. He relies on Canada v. Sadiq (1990), 39 F.T.R. 200 [hereinafter Sadiq]. In addition, he asserts that, once the process had commenced, the plaintiff delayed any further action for over two years. Finally, after filing the statement of claim, the plaintiff failed to act again for another year until the Court conducted a file review in February 2003.
[11] The defendant also argues that his conviction in provincial court should not be used as evidence in this motion, since the facts clearly establish that he did not intend to conceal any charge. As the defendant has failed to produce any evidence at all, this argument lacks any evidentiary basis and will not be considered.
[12] The plaintiff submits that the defendant has not clearly explained on what grounds any possible finding of delay should affect whether this Court makes a finding regarding misrepresentation. It submits that it is settled law that the determination of a reference pursuant to section 18 of the Citizenship Act should not be discontinued due to a delay in bringing the case before the Court. It cites Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2000] F.C.J. No. 1675, affirmed 2001 FCA 158, in which there was a delay of 44 years between the date citizenship was granted and the date that revocation procedures were commenced. It also cites Canada v. Luitjens, [1992] F.C.J. No. 319, wherein the Court of Appeal found that a reference pursuant to section 18 of the Citizenship Act does not engage a citizen=s section 7 Charter rights.
[13] The plaintiff distinguishes Sadiq, since the question of whether the defendant in that case had made false representations had not yet been decided.
[14] Finally, the plaintiff states that it did not delay commencing the action for two years; rather, the action was commenced less than 1 year after the notice was served.
[15] It is well established that the test for summary judgment is whether there is a genuine issue for trial. The defendant argues that there are serious questions with regards to the issues of delay and intent to misrepresent. I disagree. First, the defendant has not demonstrated that there was any significant delay in proceeding with revocation of his citizenship. Second, the defendant has not provided any evidence calling his conviction under the Citizenship Act into question. In fact, the defendant has not submitted any evidence at all, as is required by Rule 215 of the Federal Court Rules 1998.
[16] With regard to the issue of delay, in the circumstances of this case, the delays that occurred should not affect its determination. In fact, the defendant has not demonstrated how the government=s delay in commencing revocation proceedings has even caused any prejudice to him.
[17] With regard to whether the defendant had the intention to misrepresent his criminal status when he took his citizenship oath, the provincial court has found, beyond a reasonable doubt, that he did. In Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (F.C.T.D) , Justice McGillis held that evidence of a conviction for knowingly concealing material circumstances for the purposes of obtaining citizenship was proof in a reference proceeding, such as in the case at bar. Since the defendant has not provided any evidence that calls that decision into question, there is no reason why that conviction should not be considered as determinative of this issue. He has not demonstrated that there is a serious issue to be tried with regard to that conviction.
[18] For the reasons outlined above, I conclude that this motion for summary judgment should be allowed.
ORDER
The motion is granted. Plaintiff has leave to amend the statement of claim. It is declared that the defendant obtained his Canadian citizenship by knowingly concealing a material circumstance, namely, that he had been charged with an indictable offence.
Judge
Ottawa, Ontario
June 6, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-150-02
STYLE OF CAUSE: MCI v. Eyad Kawash a.k.a. Eyad Fathi Hussein
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: June 6, 2003
WRITTEN SUBMISSIONS BY:
Catherine Vasilaros FOR PLAINTIFF
Glenn E. Matthews FOR DEFENDANT
SOLICITORS ON THE RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR PLAINTIFF
Porter Matthews Law Firm LLP
Windson, Ontario FOR DEFENDANT