Date: 20040303
Docket: T-2755-95
Citation: 2004 FC 311
BETWEEN:
IN THE MATTER of revocation of citizenship pursuant to section 10 of the
Citizenship Act, R.S.C. 1985, c. C-29;
AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act;
AND IN THE MATTER of a reference to the Court commenced pursuant to rule 920 of the former Federal Court Rules, continued pursuant to rule 169(a) of the current Federal Court Rules, 1998, as required pursuant to rule 501 of the Federal Court Rules,1998.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant,
and
MALKIAT SINGH
Respondent
INTRODUCTION
[1] These reasons follow a brief hearing at Winnipeg, Manitoba on Monday the 9th of February, 2004 following which, on motion on behalf of the Respondent, I adjourned the hearing sine die, notwithstanding that the hearing had been set to continue for five (5) full days. That Order was made rather reluctantly for two (2) reasons: first, this matter has been ongoing for many years and should by now have been long ago completed and would have been but for an extraordinary series of circumstances which, I am satisfied, were largely beyond the control of counsel and of this Court; and secondly, because the Order was, I am satisfied, arguably inconsistent with authorities that, by analogy, are binding on me. These reasons are provided primarily to highlight the facts brought to the attention of the Court in the days immediately preceding the hearing and at the hearing itself that, I concluded, in the interests of justice, required me to distinguish prior authorities.
BACKGROUND
[2] The Applicant became a citizen of Canada on the 31st day of October, 1985. By Notice of Reference filed the 28th of December, 1995, the Applicant commenced this proceeding pursuant to sections 10 and 18 of the Citizenship Act[1]. Those sections 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.
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) 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.
...
(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) 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.
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.
In sum, the Applicant seeks a decision of this Court that the Respondent obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[3] With the concurrence of the Government of India, the Court, over a period of four (4) days in March of 2002, took evidence on commission at Ludhiana, in the State of Punjab, India. That evidence was taken into the record of this proceeding in two (2) stages by Orders dated the 14th of August, 2002 and the 16th of September, 2003. The latter Order fixed the five (5) day hearing to commence the 9th of February, 2004 which is specifically described in the Order to constitute "[t]he balance of hearing of this matter".
[4] On the 12th of January, 2004, the Respondent was arrested in South-Central British Columbia. Counsel for the Respondent, in correspondence to the Court, described the basis of the arrest as an "...extradition warrant requested by the Attorney General of Canada pursuant to a request from the Government of India". From that date to the date of the hearing on the 9th of February, 2004, the Respondent remained in custody and only appeared in Court on that day by reason of an Order of the Court made under Rule 45 of the Federal Court Rules, 1998[2]. He appeared under escort from custody. In the same letter just referred to, counsel wrote:
The extradition proceeding coming to the attention of Mr. Singh without hint or notice of any kind is of such an overwhelming nature that Mr. Singh and his family are overwrought with anxiety, fear and worry. Moreover, the resulting fragile emotional state of Mr. Singh and his family members causes me great concern that instruction to counsel is being provided upon emotion, fear, panic and shock rather than a balanced appreciation of legal advice and opinion.
[5] Counsel subsequently submitted, under cover of an affidavit of a "legal assistant and litigation paralegal", a psychiatric report of a medical practitioner and psychiatrist in the Province of British Columbia with a speciality in forensic psychiatry in which the reporting medical practitioner concluded in the following terms:
Considering all of the information available to me, it is my opinion that Mr. Bhandol [described as Mr. Singh in the style of cause in this matter] is currently suffering from a Major Depressive Episode with marked anxiety features. This disorder is clearly and strongly related to the stress of his incarceration, fears regarding his future and most strongly fears regarding the welfare of his family.
This disorder also very seriously compromises his short-term memory and his concentration. As a result, it is extremely difficult to discuss his legal situation with him in any meaningful fashion as he seems unable to focus and concentrate well enough to be able to deal meaningfully with issues and decisions regarding his legal issues.
In my opinion his ability to understand his legal situation, communicate with counsel, instruct counsel, testify or otherwise participate meaningfully in legal hearings is currently very compromised by these mental health problems.
In my opinion, he [Mr. Singh Bhandol] requires diagnostic and therapeutic reassessment by prison mental staff and would probably benefit from antidepressant medication as well as supportive counselling in order to improve his capacity to function mentally and to reduce his emotional distress somewhat. [my emphasis]
[6] The medical practitioner's report is dated the 4th of February, 2004, more than three (3) weeks after the Respondent's arrest and only four (4) days before the date fixed for resumption of the hearing in this matter. Counsel for the Applicant made no objection to the manner in which the Report came before the Court and sought no opportunity to cross-examine on the Report.
[7] When the hearing commenced on the 9th of February, there were, apparently, a number of members of the Respondent's family in the Courtroom, in addition to the Respondent himself and his escort. Counsel for the Respondent advised the Court that his retainer with respect to this matter had been terminated by the Respondent's family, that the family had retained another counsel and that they would be seeking, in British Columbia, appointment of a litigation guardian for the Respondent. In the circumstances, he advised the Court, he no longer had authority on behalf of his client to address the Court, other than for purposes of seeking an adjournment.
[8] It is to be noted that the Respondent himself had not terminated his counsel's retainer and that, indeed, he might well have been incapable of doing so. Certainly his family members had no authority in law to withdraw counsel's retainer. Nothing had been filed with the Court to affect counsel's retainer or to terminate his role as solicitor of record for the Respondent. Counsel allegedly newly appointed to represent the Respondent did not appear and filed no material with the Court. The Court was given no assurances, other than those provided by counsel who alleged he had no instructions, that appointment of a litigation guardian on behalf of the Respondent would be diligently pursued. Certainly that step had not been diligently pursued in the almost one (1) month between the date of the Respondent's arrest and the date of the resumed hearing.
[9] Finally, counsel for the Applicant advised the Court that the Applicant was not opposing an adjournment. Counsel for the Applicant is recorded in a transcript of the hearing as having advised the Court:
Having regard to the further comments that my learned friend made this morning, and which I only learned of recently; namely the restraint of his retainer. I think that puts us all in a very difficult position. And I really don't think that I need to comment further on that.[3]
ANALYSIS
[10] Counsel for the Respondent assured the Court that only a short adjournment, albeit without any indication of specific duration, was being sought. Impliedly, he urged that the adjournment being sought was not of an equivalent nature to a stay of the proceeding before the Court. In response, the Court identified four (4) areas of concern or uncertainty: first, whether the course of reassessment, treatment and support recommended by the medical practitioner whose report is earlier referred to would be accepted by the Respondent and his family members; secondly, if accepted, whether it would inevitably be successful; thirdly, assuming that it would be successful, that it would be successful in the short term; and fourthly, that appointment of a litigation guardian for the Respondent would be pursued diligently and accomplished expeditiously.[4] In the result, the Court expressed its reluctance to accept any assurance that the adjournment being sought would be of a short term nature.
[11] In Canada (Minister of Citizenship and Immigration) v. Fast[5], Justice Pelletier, now of the Federal Court of Appeal, had before him a motion for a stay of a proceeding such as this in support of which the Court had before it evidence that the Respondent suffered from a form of Alzheimer's disease which, according to the evidence, effectively prevented the Respondent from being physically, intellectually and communicatively present and able to participate to the best of his natural ability in the preparation and conduct of his case. Justice Pelletier reviewed the facts and the argument before him rather extensively and in a very sympathetic manner but eventually concluded that he was bound by authority to deny the request for a stay. The following paragraphs are extracted from the headnote to that decision and, I am satisfied, very fairly, and substantially more succinctly, reflect the substance of the decision:
On the evidence, the defendant would be unable to participate meaningfully in the trial of the allegations against him. The question then was whether a stay of proceedings was justified on the basis of section 7 of the Charter. In Singh et al. v. Minister of Employment and Immigration, the Supreme Court of Canada decided that refugee claimants are entitled to the benefit of section 7 of the Charter. As a result, it was decided that anyone who was physically present in Canada and was amenable to Canadian law had status to claim the benefit of section 7, and that the threat of a deprivation of security of the person was sufficient to trigger the operation of section 7. Here, it was clear that the defendant's citizenship was at risk in the revocation proceedings, taken as a whole. Even if citizenship is not a right protected by the Charter, citizenship, once conferred, conveys the right to enter and remain in Canada, and this right is recognized by section 4 of the Immigration Act. A loss of citizenship therefore results in a loss of the right to live in Canada and the possibility, if not the certainty, of deportation. In Godbout v. Longueuil (City), it was found that the right to choose one's place of residence was a constitutionally protected right (under section 7 of the Charter under the heading of liberty). It follows that a citizen's right to live in Canada at all must also be protected on the same basis. In the same way as section 7 of the Charter applies to all refugee claimants, the defendant's claim to protection of section 7 is independent of the merits of the Minister's allegations against him. Consequently, if the question were one that was free of authority, the conclusion would be that the defendant was entitled to the benefit of section 7 of the Charter with regard to proceedings in the Federal Court. This result would be in accord with the average person's sense of fair play that a citizen facing loss of citizenship should have no less constitutional protection than a refugee claimant presenting himself for entry to Canada. And the appointment of a litigation guardian would not be sufficient to comply with the requirements of fundamental justice. The case at bar was unlike the typical situation in which a litigation guardian is appointed to an action for financial compensation. Where as here, fundamental rights are at stake, appointment of a litigation guardian would be an inadequate remedy. The lack of an appropriate remedy could not be considered reasonably justified in a free and democratic society.
Furthermore, an analysis of the factors referred to in New Brunswick (Minister of Health and Community Services) v. G. (J.), (interests at stake, complexity of the proceedings, and the capacities of the party) would lead to the conclusion that fairness requires that the defendant be able to participate meaningfully in the trial of the allegations against him. Also, considering Blencoe v. British Columbia (Human Rights Commission), if proceedings before the Human Rights Commission are subject to Charter scrutiny, notwithstanding the absence of a decision which infringes Charter rights, one would think that the same would be true of proceedings before the Federal Court in revocation proceedings.
However, in a line of cases culminating in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, the Court has consistently ruled that section 7 of the Charter does not apply to revocation proceedings in the Federal Court. In that case, the Federal Court of Appeal affirmed the decision of the Motions Judge rejecting all of the arguments raised here by the defendant. Obodzinsky cannot be distinguished, and was therefore a binding decision in this case.
As for the appeal to the Court's equitable jurisdiction to grant a stay where the interests of justice require it, that discretion could be exercised only according to settled principles. Furthermore, all of the factors canvassed in this case were present in Obodzinsky and the Court of Appeal therein approved the Motions Judge's exercise of his discretion in dismissing the application for a stay. [6]
[12] On all of the evidence that was before the Court on the adjournment motion, such as it was, and on considering the submissions of counsel, particularly those regarding the very difficult, if not completely untenable, situation in which counsel for the Respondent found himself, the reality that the issue before this Court in this matter was a request for an adjournment rather than a stay, albeit an adjournment of indeterminate duration, and the sympathetic position adopted by counsel for the Applicant in relation to the position of counsel for the Respondent resulting in the Applicant not opposing the request for an adjournment, I determined, and this by reference to the final paragraph quoted from the headnote in Fast, that the appeal here before the Court with regard to the Court's equitable jurisdiction to grant an adjournment where the interests of justice require it should succeed, notwithstanding that the Court's discretion in that regard must be exercised only according to settled principles.
[13] I was satisfied that not all of the factors before me in this matter were present in Obodzinsky, an additional factor being the assurances before the Court, which I was satisfied based on my observation of the Respondent during the hearing were reasonable, that the Respondent himself was in no position to instruct counsel. Further, the Respondent's family was simply unwilling to instruct counsel present in the courtroom, even if the family members had authority to do so.
[14] Finally, I was satisfied that it is open to the Court, on the facts of this matter, to closely monitor steps taken by the Respondent and, more importantly perhaps, his family members, to alleviate, in relatively short order, the situation that was before the Court. Here, the Court had the opportunity, and exercised it, to make clear to counsel, in the presence of family members, that the Court will reserve the right to monitor the diligence with which the Respondent and his family members seek to normalize the situation and to bring this matter on for hearing again at the earliest possible time. In the event the Court is not satisfied with reports received, the Court will not hesitate to reconvene the hearing and to take whatever appropriate action is available to it.
CONCLUSION
[15] In the result, the requested adjournment sine die was granted. The Court has put in place a monitoring program to ensure that the adjournment will not be for a term longer than circumstances absolutely require.
_____________________________
J.F.C.
Ottawa, Ontario
March 3, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-2755-95
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. MALKIAT SINGH BHANDOL
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 9th, 2004
REASONS FOR AN ORDER
REGARDING COSTS BY: GIBSON J.
APPEARANCES BY:
Mr. Harry Glinter For the Applicant
Ms. Martin S.Minuk For the Respondent
SOLICITORS OF RECORD:
Department of Justice Canada For the Applicant
Winnipeg, Regional Office
301 - 310 Broadway
Winnipeg, Manitoba
Per: Robert Gosman
Piblado For the Respondent
Barristers and Solicitors
2500 - 360 Main Street
Winnipeg, Manitoba
Per: Martin S. Minuk
[1] R.S.C. 1985, c. C-29.
[2] SOR/98 - 106.
[3] Transcript, page 8.
[4] Transcript, page 10.
[5] [2002] 3 F.C. 373. (F.C.T.D.).
[6] Cases cited in the quotation are the following: Singh et al v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Godbout v. Longueuil (City) [1997] 3 S.C.R. 844; New Brunswick (Minister of Health and Community Services v. G. (J.) [1999] 3 S.C.R. 46; Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307; and Canada (Minister of Citizenship and Immigration) v. Obodzinsky [2001] F.C.J. No. 797 (C.A.) (Q.L.) affirming (2000), 14 Imm. L.R. (3d) 184 (F.C.T.D.).