Date: 20020613
Docket: T-166-00
Ottawa, Ontario, June 13, 2002
Before: NADON J.
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
WALTER OBODZINSKY
(alias Wlodzimierz or Volodya Obodzinsky)
Defendant
ORDER
The defendant's motion pursuant to Rule 220 of the Federal Court Rules, 1998 is dismissed with costs to the plaintiff.
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"M. Nadon"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020613
Docket: T-166-00
Neutral citation: 2002 FCT 669
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Plaintiff
and
WALTER OBODZINSKY
(alias Wlodzimierz or Volodya Obodzinsky)
Defendant
REASONS FOR ORDER
NADON J.
[1] This is a motion by the defendant pursuant to Rule 220 of the Federal Court Rules, 1998 asking the Court to rule on two preliminary questions of law, namely:
- to decide whether the legislation relating to the procedure for revoking citizenship, that is ss. 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 ("the Act"), in conjunction with ss. 2(1), 27, 32(2)(6) of the Immigration Act, contravenes and is inconsistent with ss. 1(a) and (b) and 2(a), (b) and (e) of the Canadian Bill of Rights, R.S.C. 1985, App. III, and is of no force or effect with respect to the defendant;
- to decide whether the legislation relating to the procedure for revoking citizenship, that is ss. 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 ("the Act"), in conjunction with ss. 2(1), 27, 32(2)(6) of the Immigration Act, contravenes and is inconsistent with ss. 7, 12 and 15 of the Charter (ss. 24 and 52 of the Canadian Charter of Rights and Freedoms, Part I of the 1982 Act, c. 11 (U.K.), R.S.C. App. II, No. 44) and is of no force or effect with respect to the defendant.
[2] The defendant put forward the following grounds in support of his forthcoming argument, regarding these questions of law:
- the Act makes no provision for a "complete" hearing before an independent tribunal to determine the right of a citizen faced with revocation of citizenship, who may thus lose all status in Canada;
- the process set out in the Act does not in any way guarantee observance of the rules of fundamental justice recognized as applicable, namely in the event of a threat to the person's safety or freedom, so as to protect him from the adverse effects of a delay in filing proceedings and the harm caused by unforeseeable circumstances, such as the defendant's health, which may affect fairness and/or the citizen's right to a full and complete defence;
- the Act infringes the equality right of naturalized citizens by unjustifiably exposing them to a permanent risk of having their status challenged, making them vulnerable and "second class" citizens, and also by exposing them to an unfair proceeding;
- the Act infringes the defendant's equality right by unjustifiably exposing him, as an immigrant from Europe during the Second World War period and a naturalized citizen prior to 1977, to a citizenship revocation procedure based on superseded and vague criteria such as good character, without regard to currently applicable criteria;
- the Act exposes naturalized citizens to treatment prohibited by s. 12 of the Charter, by authorizing the introduction and continuance of citizenship revocation proceedings against citizens who have long been settled in Canada, without the protection of s. 7 of the Charter and by an unfair proceeding.
[3] Further, the defendant asked this Court to decide whether the introduction or continuance of the proceedings at bar constituted treatment prohibited by s. 12 of the Charter and an infringement of the equality right laid down in s. 15 of the Charter.
[4] Rule 220 reads as follows:
| 220. (1) A party may bring a motion before trial to request that the Court determine (a) a question of law that may be relevant to an action; (b) a question as to the admissibility of any document, exhibit or other evidence; or (c) questions stated by the parties in the form of a special case before, or in lieu of, the trial of the action.
(2) Where, on a motion under subsection (1), the Court orders that a question be determined, it shall (a) give directions as to the case on which the question shall be argued; (b) fix time limits for the filing and service of motion records by the parties; and (c) fix a time and place for argument of the question. (3) A determination of a question referred to in subsection (1) is final and conclusive for the purposes of the action, subject to being varied on appeal.
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220. (1) Une partie peut, par voie de requête présentée avant l'instruction, demander à la Cour de statuer sur: a) tout point de droit qui peut être pertinent dans l'action; b) tout point concernant l'admissibilité d'un document, d'une pièce ou de tout autre élément de preuve; c) les points litigieux que les parties ont exposés dans un mémoire spécial avant l'instruction de l'action ou en remplacement de celle-ci.
(2) Si la Cour ordonne qu'il soit statué sur l'un des points visés au paragraphe (1), elle: a) donne des directives sur ce qui doit constituer le dossier à partir duquel le point sera débattu; b) fixe les délais de dépôt et de signification du dossier de requête; c) fixe les dates, heure et lieu du débat.
(3) La décision prise au sujet d'un point visé au paragraphe (1) est définitive aux fins de l'action, sous réserve de toute modification résultant d'un appel.
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This rule provides for a two-stage procedure. To begin with, the Court must decide whether it is proper to determine the questions of law before the trial. If the answer to that question is yes the Court must, secondly, give directions as to the case on which the question(s) of law will be argued and fix time limits leading to the hearing.
[5] In Perera v. Canada, [1983] 3 F.C. 381, the Federal Court of Appeal per Létourneau J.A. set out the rules which must guide a judge who has to decide a motion under Rule 220. At 391 to 393 (paras. 12 to 15), Létourneau J.A. wrote the following:
[12] The only issue on this branch of the appeal, therefore, is whether the Judge of first instance erred in concluding that the proposed questions of law ought not to be decided before trial.
[13] It may be useful to recall that Rule 474 does not confer on anyone the right to have questions of law determined before trial; it merely confers on the Court the discretion to order, on application, that such a determination be made. In order for the Court to be in a position to exercise that discretion, it must be satisfied, as was stated in the Berneche case, that the proposed questions are pure questions of law, that is to say questions that may be answered without having to make any finding of fact. Indeed, the purpose of the Rule is to have the questions answered before trial; it is neither to split the trial in parts nor to substitute for part of the trial a trial by affidavits. This is not to say, however, that the parties must agree on the facts giving rise to the legal questions; a legal question may be based on an assumption of truth of the allegations of the pleadings provided that the facts, as alleged, be sufficient to enable the Court to answer the question.
[14] Before exercising its discretion under Rule 474, the Court must also be satisfied that the questions to be answered are not academic and will be "conclusive of the matter in dispute". In this regard, it is important to note that, contrary to what was argued by counsel for the respondent, Rule 474 does not require an absolute certainty that the determination of the question will dispose, in whole or in part, of the litigation. The judge hearing the question must only be satisfied that the proposed question, as said by Jackett C.J. in R. v. Achorner, "may probably be decided in such a way as may dispose of the action or some substantial part of it". It is therefore not necessary that the question of law be one which, whatever way it is answered, will be decisive of the litigation.
[15] Once these requirements are met, the Court is under no obligation to grant the Rule 474 motion. It must, at that stage, exercise its discretion having in mind that the procedure contemplated by Rule 474 is exceptional and should be resorted to only when the Court is of the view that the adoption of that exceptional course will save time and expense. It is in that light that the Court must take into consideration all the circumstances of the case which, in its view, militate in favour or against the granting of the motion. It is not possible to give a list of all these circumstances. The agreement of the parties is obviously one of them. Less obvious, perhaps, is the fact that the Judge may take into account his opinion as to the probability that the question will be answered in a manner that will not dispose of the litigation. He may also consider the complexity of the facts that will have to be proved at the trial and the desirability, for that reason, of avoiding such a trial. He must also take into consideration the difficulty and importance of the proposed questions of law, the desirability that they not be answered in a "vacuum", and the possibility that the determination of the questions before trial might, in the end, save neither time nor expense. [references omitted]
[6] To sum up the comments of Létourneau J.A., before ordering the determination of questions of law before the trial the Court must be satisfied that the proposed questions are pure questions of law, that they are not simply academic and that they will dispose of the matter in whole or in part. As Létourneau J.A. noted in para. 15 of his reasons, the judge must exercise his discretion having in mind that the rule creates an exception and should be resorted to by the Court only when it is satisfied that determination of the questions of law "will save time and expense".
[7] For the purposes of the motion at bar it is worth recalling that on July 30, 1999 the defendant received a notice of revocation of citizenship pursuant to s. 18(1) of the Act. Following receipt of that notice the defendant, pursuant to s. 18(1)(a), asked that the matter be referred to this Court. On February 1, 2000 the plaintiff filed an action alleging that the defendant had obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances, contrary to s. 10 of the Act. On May 4, 2000 the plaintiff served on the defendant a motion for an order setting a schedule leading to hearing of the case. On the same day, the defendant served on the plaintiff a motion for a temporary and permanent stay order on the action filed by the plaintiff.
[8] On October 12, 2000 I dismissed the defendant's stay application, which I had heard on June 27, 2000. In support of his motion the defendant argued that continuing the proceedings brought by the plaintiff was contrary to the Charter and that the plaintiff's delay in bringing those proceedings constituted an abuse of process. On May 23, 2001 the Federal Court of Appeal dismissed the defendant's appeal from my order of October 12, 2000. Finally, on February 14, 2002 the Supreme Court of Canada dismissed the application for leave to appeal filed by the defendant from the Federal Court of Appeal's judgment.
[9] For the following reasons, I feel that the defendant's motion should be dismissed. First, I agree with the plaintiff when she submitted that the questions of law which the defendant is asking the Court to answer are only for the most part a reformulation of the points of law raised by the defendant in connection with his motion for a stay order. This can be seen from reading the memorandum of fact and law filed by the defendant in the Federal Court of Appeal and his application for leave to appeal filed with the Supreme Court of Canada.
[10] Secondly, I also agree with the plaintiff's argument that the defendant is again attempting to challenge the merits of the Federal Court of Appeal's judgment in Luitjens v. Canada (1993), 142 N.R. 173, on which I relied in concluding that s. 7 of the Charter did not apply at the stage of the referral made under s. 18 of the Act. In Canada (Minister of Citizenship and Immigration) v. Fast, 2001 FCA 373, a decision rendered on November 29, 2001, the Federal Court of Appeal repeated the conclusion to which it came in Luitjens, supra. At para. 2 of his reasons, Strayer J.A. said the following:
[2] With respect to the first criterion to be considered on a stay application, that of whether there is a serious issue as to the correctness of the decision of Pelletier J., I find none to be raised. The learned trial judge considered himself to be bound by previous decisions in this Court to the effect that a proceeding under section 18 does not involve rights in section 7 of the Charter because it involves only findings of fact and no decisions that determine rights. This has been decided on at least three occasions by this Court: (see Canada v. Luitjens (1992), 142 NR 173; Canada v. Katriuk (1999), 252 NR 68; and Canada v. Obodzinsky 2001 FCA 158, [2001] FCJ No. 797). The Supreme Court has quoted with approval this Court's analysis of the nature of section 18 proceedings (see Canada v. Tobiass, [1997] 3 SCR 391 at 413) and refused leave to appeal in the Katriuk case ([2000] SCCA No. 86). The trial judge correctly found himself to be bound by the jurisprudence as I am. Stare decisis is the normal rule and is itself one of the "basic tenets" of our legal system (thus an element of "fundamental justice") allowing Canadians some certainty and predictability in the law as well as some efficiency in the administration of their system of justice.
[11] Thirdly, by his questions of law the defendant asked this Court to decide on the constitutionality of the revocation procedure set out in ss. 10 and 18 of the Act, which read as follows:
| 10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances, (a) the person ceases to be a citizen, or (b) the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
18. (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 (a) 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 (b) 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.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address. (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
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10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée : a) soit perd sa citoyenneté; b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
18. (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 : a) 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; b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
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[12] Since the referral mentioned in s. 18.1 of the Act applies only to a conclusion of fact, namely whether the defendant obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances, I consider that the questions suggested by the defendant are not in any way relevant since, as the Federal Court of Appeal held in Luitjens and Fast, supra, and in Katriuk v. Canada (1999), 252 N.R. 68, the decision made by this Court in connection with s. 18.1 is only a preliminary finding, "which may later form the basis for a decision by the Governor in Council to revoke his citizenship" and consequently such a decision has no impact on the life, liberty or security of the person.
[13] As to the second stage of the revocation procedure, namely the decision which the Governor in Council may make, the questions suggested by the defendant are premature. On this point I can only refer to the comments of Linden J.A. in Luitjens, supra, where at para. 8 he said the following:
[8] I am of the view that s. 7 does not render s. 18(3) of no force and effect. First, at the time of the decision of the court, at least, s. 7 was not engaged in that there was not yet any deprivation of Mr. Luitjen's "life, liberty and security of the person". All that was decided by the trial judge was the fact that Mr. Luitjens obtained his Canadian citizenship by false representations. This finding may well form the basis of decisions by others, which may interfere with those rights at some future time, but this decision does not do so. Therefore, it is merely one stage of a proceeding which may or may not result in a final revocation of citizenship and deportation or extradition. There may be a right of review or appeal at a later stage, which is usually the case ... [Reference omitted]
[14] Fourthly, I feel that even if the defendant was right in saying that the questions for which he wishes an answer have not been decided by this Court, I consider that in view of the applicable case law in this Court and in the Supreme Court of Canada, the answers to the questions suggested by the defendant will not be in his favour and so the determination before trial sought by the defendant will in no way dispose of the case in whole or in part.
[15] I therefore come to the conclusion that the defendant's motion should be dismissed with costs to the plaintiff.
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"M. Nadon"
Judge |
O T T A W A, Ontario
June 13, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-166-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
WALTER OBODZINSKY
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 3, 2002
REASONS FOR ORDER BY: Nadon J.
DATE OF REASONS: June 13, 2002
APPEARANCES:
David Lucas and Sébastien Dasylva for the plaintiff
Johanne Doyon for the defendant
SOLICITORS OF RECORD:
Morris Rosenberg for the plaintiff
Deputy Attorney General of Canada
Doyon & Mombriand for the defendant
Montréal, Quebec