Date: 19981117
Docket: T-1906-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HENDERPAUL COOMAR
Respondent
REASONS FOR ORDER
McKeown J.
[1] Mr. Coomar, a citizen of Guyana, was convicted of the offense of manslaughter in Guyana on January 29, 1979, two days before his daughter applied to sponsor him for landed immigrant status on the basis of his being a member of the family class. When he filled out the application forms for a visa and for citizenship, he denied ever having been convicted of a crime. The Minister sought to revoke Mr. Coomar"s citizenship on the ground that he was lawfully admitted into Canada for permanent residence by false representations and by knowingly concealing material circumstances, and that Mr. Coomar subsequently obtained citizenship on the basis of that admission. Mr. Coomar requested a hearing pursuant to s. 18 of the Citizenship Act . On August 29, 1997, the Minister referred the case to the Court.
[2] The issues are whether Mr. Coomar was lawfully admitted to Canada for permanent residence by false representations and by knowingly concealing material circumstances, and whether the application should be dismissed because of the Minister"s delay in bringing it forward.
The Facts
[3] Mr. Coomar operated a restaurant in Guyana in the 1970's. In 1977, a man named Mr. Stuart walked into the restaurant, picked up one of the customers" drinks, drank it, took the glass with him and left the restaurant. The customer complained to Mr. Coomar who, thereupon, went out and found Mr. Stuart. While bringing Mr. Stuart back inside the restaurant, Mr. Coomar was holding a handgun. Mr. Coomar alleged that after coming through the door, he stumbled and fell, thereby causing the gun to fire. The shot rebounded off the door and killed the victim, Mr. Stuart. However, this testimony conflicts with a report by the Commissioner of Police of Georgetown, Guyana, to the Canadian High Commission in Georgetown, which stated that Mr. Coomar had shot Mr. Stuart in the back of the head.
[4] Mr. Coomar testified that he was tried for murder and acquitted. He further testified that after the acquittal, he was released on $1,000 bail. He testified that he was acquitted because his lawyer presented the case as self-defence. However, he also testified that the police told him the incident was treated as an accident in the first trial. He was evasive on how this incident could be an accident and an act of self-defence at the same time.
[5] I do not accept as credible Mr. Coomar's evidence that he was acquitted of murder. He testified that two months after his acquittal, he was charged with murder again, and as a result of a "bargain plea" by his lawyer, he entered a plea of guilty to a manslaughter charge and was sentenced to a fine of $10,000. However, the certificate of conviction from the Registrar of the Supreme Court of Judicature of the Republic of Guyana states that Mr. Coomar was originally charged with murder, that it was reduced to manslaughter, and that he was committed to stand trial by jury. He was tried for manslaughter before a Judge of the High Court and was found guilty. In his testimony, Mr. Coomar was evasive when asked whether he had not admitted guilt, even in his own version of events. He indicated that he did not believe that was the case and that his lawyer had handled all the matters in connection with what Mr. Coomar called a "bargain plea".
[6] However, in a statement made to Constable Dyer of the Royal Canadian Mounted Police, dated June 25, 1992, Mr. Coomar admitted that (by his recollection a year or two before his daughter sponsored him to come to Canada) he entered a plea of guilty to the offense of manslaughter in Guyana and was fined $10,000. Mr. Coomar stated that the incident concerning Mr. Stuart was treated as an accident by the police, and that he believed that the second time he was charged, it was not because of any criminal aspect, but for political reasons. The victim, Mr. Stuart, was a "Negro" and according to Mr. Coomar, Negroes controlled the police in Guyana and treated East Indians, like himself, badly. Mr. Coomar produced articles from The Nation for the purpose of establishing that race-based violence perpetuated by government officials was commonplace. However, these articles are of a general nature, one is dated 1973, and they do not substantiate Mr. Coomar's claim regarding the circumstances surrounding his conviction. I attach no weight to these articles.
[7] I do not find credible Mr. Coomar's testimony on the political element of his conviction. Furthermore, by denying his conviction for manslaughter on his Canadian visa and citizenship application, Mr. Coomar did not give the Canadian Immigration officials an opportunity to determine if indeed, the political conditions in Guyana were the reason that he was convicted.
[8] On January 31, 1979, Mr. Coomar's daughter applied to sponsor him as a landed immigrant to Canada. Ms. Boyle, a retired Senior Immigration Officer, testified that as a sponsored immigrant, Mr. Coomar would have received a package of documents, including an IMM 8 form - Application for Permanent Residence in Canada, about two months after his daughter had applied to sponsor him. Although his IMM 8 form is not in existence anymore, he admitted that he had received such a form and had answered "No" to the form's question as to criminal conviction. On March 11, 1980, he arrived in Canada and again, on the visa form, which was entered into evidence before me, he provided the same incorrect answer. On June 17, 1983, he applied for Canadian citizenship under s. 5(1) of the Citizenship Act , and on October 4, 1983, his application was approved by a Citizenship Judge. He took the oath of citizenship on November 9, 1983.
[9] Mr. Coomar produced two documents from police inspectors in Guyana, dated December 30, 1991, and June 2, 1992, wherein the police stated that Mr. Coomar was not known to them. Mr. Coomar claimed he received a similar document in 1980 and as a result, he believed that no conviction was recorded against him. He professed to not understand or have had any participation in court as a result of his counsel"s "bargain plea". I do not find his evidence on this point credible. Furthermore, I prefer the documentary evidence produced by the applicant, i.e. a letter dated letter March 9, 1989, from the Commissioner of Police of Georgetown, Guyana, providing the Canadian High Commission in Georgetown with details concerning the previous conviction of Mr. Coomar, and a certificate dated December 6, 1990, from the Registrar of the Supreme Court of Judicature of the Republic of Guyana, which certified that he was convicted of the offense of manslaughter and sentenced to a fine of $10,000 on January 29, 1979. In contrast, the two documents on which Mr. Coomar relies are incomplete, addressed To Whom It May Concern, and are from lower ranking officials, police inspectors.
Analysis
[10] As I stated in MCI v. Bogutin, 1998, FCJ No. 211, at paragraph 113,
| ... I apply the civil standard of proof on a balance of probabilities but I must scrutinize the evidence with greater care because of the serious allegations to be established by the proof that is offered. |
[11] I must determine if Mr. Coomar was lawfully admitted to Canada for permanent residence by false representations or by knowingly concealing material circumstances and thereby subsequently obtained citizenship contrary to s. 10 of the Citizenship Act, R.S.C. 1985, c. C-29.
[12] As Jerome ACJ stated in Canada (Minister of Multiculturalism and Citizenship) v. Minhas [1993] 21 Imm. L.R. (2d) 31 at p. 34,
| ... [t]he words used in subs. 10(1) do not impute an offence requiring the full criminal standard of proof "beyond a reasonable doubt," but rather have the effect of saving innocent misrepresentations from the severe penalty of revocation of citizenship. |
There was no innocent misrepresentation in the case before me.
[13] In my view, Mr. Coomar was not credible with respect to his testimony relating to his lack of knowledge of any convictions or his denial of admission of guilt. I am satisfied he knew about his conviction and that he had admitted guilt before the judge in Guyana, and therefore, I am satisfied that he obtained landed immigrant status by false representation or by knowingly concealing a material fact. In revocation hearings, the question is whether the person obtained citizenship under the Act by false representations or fraud or by knowingly concealing material circumstances. In light of the facts as I have found them in this case, I do not have to decide whether, if Mr. Coomar had disclosed the conviction and had presented evidence to the Canadian Immigration officials, the conviction should be ignored because of a corrupt political and legal system in Guyana.
[14] I must now determine whether the application should be dismissed on the grounds of the Minister"s delay. Mr. Coomar relies on The Minister of Citizenship and Immigration v. Copeland [1998], 2 F.C. 493 (F.C.T.D.), in which McGillis J. concluded that undue delay contrary to s. 7 of the Charter will be found in revocation cases where: one, the delay was unreasonable in the circumstances of the particular case; and two, the evidence demonstrates that the claimant has in fact suffered prejudice as a consequence of the delay. Apparently, Canada (Secretary of State) v. Luitjens [1992], 142 N.R. 173 (F.C.A.) was not cited in that case with respect to the s. 7 Charter argument, and thus was not considered by McGillis J.. In Luitjens, ibid at p. 175, Linden J.A. stated, "... [t]he decision did not finally determine any legal rights". Specifically while the Court makes certain findings of fact, the eventual decision will be made by the Governor-in-Council, as set out in ss. 10 and 18(1) of the Citizenship Act . Linden J.A. then went on to say:
| 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. Luitjens" "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. |
[15] Noël J. followed Luitjens in MCI v. Dueck, 41 Imm. L.R. (2d) 259, and pointed out that the recent decision of Minister of Citizenship v. Tobiass, [1997] 3 S.C.R. 391 in the Supreme Court of Canada confirms the conclusion reached by Linden J.A. with respect to s. 7 of the Charter. (See Dueck, supra, at para34).
[16] For the same reason, the cases of Secretary of State v. Charran [1988], 21 F.T.R. 117 (F.C.T.D.) and R. v. Sadiq [1990], 39 F.T.R. 200 (F.C.T.D.) cannot be supportive of the application of s. 7 to revocation cases. Furthermore, even if s. 7 applied, there is no evidence of prejudice here.
[17] In the result, on this reference, I find that Mr. Coomar was lawfully admitted to Canada and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances. The parties may speak to me about costs, if they are unable to resolve the matter between themselves.
(Sgd.) "William P. McKeown"
Judge
VANCOUVER, British Columbia
November 17, 1998
[18] FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1906-97
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
- and -
HENDERPAUL COOMAR
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 27, 1998
REASONS FOR JUDGMENT OF MCKEOWN J.
DATED: November 17, 1998
APPEARANCES:
W. BRAD HARDSTAFFFOR APPLICANT
JOHN J. GILLFOR RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL
OF CANADAFOR APPLICANT
MCCUAIG DESROCHERS, EDMONTONFOR RESPONDENT