Date: 20010309
Docket: T-1063-98
Neutral citation: 2001 FCT 168
BETWEEN:
JEAN CONILLE
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion to summon to answer a charge of contempt of court and ultimately to cite for contempt of court, with all the legal consequences, the persons whose names appear below:
- ROGER PAYETTE
- MICHEL PERRAS
- PASCALE-CATHERINE GUAY
- CHRISTINE BERNARD
- DIANE SÉGUIN-BACON
- LOUISE VINETTE
[2] During the proceeding counsel for the plaintiff informed the Court that he was withdrawing his application to cite to appear in the case of Christine Bernard and Louise Vinette.
[3] At the start of the hearing counsel for the plaintiff also withdrew paras. 2 and 3 of his motion, which read as follows:
[TRANSLATION]
2. direct the defendant to consider any inquiry concerning the citizenship application of the plaintiff closed;
3. direct the defendant to forward the plaintiff's citizenship application to a citizenship judge for the merits of the application to be heard and decided . . .
[4] Counsel for the plaintiff noted that a judgment by Danièle Tremblay-Lamer J. on October 30, 1998 imposed certain duties on the defendant.
[5] The plaintiff suggested that Roger Payette and Pascale-Catherine Guay had knowingly concealed significant facts from this Honourable Court on October 13, 1998 at the hearing of the motion for a mandamus made against the defendant by the plaintiff, thereby impeding the course of justice.
[6] The plaintiff further suggested that Michel Perras and Diane Séguin-Bacon, by various actions taken after the decision rendered by Tremblay-Lamer J., had disobeyed an order of the Court.
[7] At the start of the hearing counsel for the defendant made a preliminary objection that the amended motion was a dilatory and vexatious proceeding and constituted an abuse of process and that the motion should be dismissed.
[8] In support of his arguments the defendant suggested that the plaintiff had filed an initial motion for contempt of court on March 8, 1999, but filed a discontinuance of that initial motion four days later after learning the day before that the citizenship application had been forwarded by the Registrar to a citizenship judge.
[9] The defendant noted that the instant motion for contempt of court, again pursuant to the order made by Tremblay-Lamer J. on October 30, 1998, was filed on January 18, 2000.
[10] The defendant noted that conclusions 2 and 3, which were ultimately removed from the record at the hearing of the instant case on February 27, 2001, had been dealt with at the hearing of April 4, 2000, as mentioned both by counsel for the plaintiff in respect of conclusion 3 and at the suggestion of the Court in respect of conclusion 2.
[11] Both at the hearing of July 31, 2000, the date on which the instant hearing was set down, and at the filing of an amended notice of motion on February 19, 2001, the plaintiff maintained paragraphs 2 and 3 of his conclusions in the motion for contempt of court.
[12] The defendant noted that on April 12, 1999 the plaintiff served an application for leave and judicial review pursuant to s. 82.1 of the Immigration Act against the inquiry direction pursuant to s. 27(3) of the Immigration Act and the inquiry before an adjudicator that would follow.
[13] On April 26, 1999, two weeks later, the plaintiff discontinued this application. The defendant noted that although he had indicated his intention to amend his initial motion to add the names of persons covered by the contempt of court motion at the hearing of July 31, 2000, the plaintiff waited over six months, that is until the date his amended motion was served, February 19, 2001, to identify the persons whom he wished cited for contempt of court.
[14] Counsel for the defendant suggested that the amended notice of motion was a belated, dilatory and vexatious proceeding and was an abuse of process that should be penalized by the Court.
[15] In reply to this preliminary objection, the plaintiff noted that it was not until October 1, 1999, following an access to information application, that he was able to have access to over 700 pages of notes and when he learned in particular of the exchanges of correspondence between various employees at various levels in the Department of Employment and Immigration (now the Department of Citizenship and Immigration).
[16] Counsel for the plaintiff further suggested that it was after the reply record was filed in March 2000 that he was able to obtain a number of facts that had not been brought to his attention previously, in particular the parts played by Mr. Payette and Ms. Pascale-Catherine Guay.
[17] At the hearing I decided that I did not have available all the evidence needed to decide on such a motion and therefore took the objection under reserve, until I could hear submissions on the facts to determine whether the proceeding was an abuse of process.
[18] The Court should first observe that the present situation is an entirely regrettable one for both parties. It seems clear that the plaintiff had to search far and wide in order to obtain all the information he was entitled to have, but the fact remains that the information has been available to the plaintiff for some time. In this regard, I have no hesitation in finding that the allegations that the actions taken by Michel Perras and Diane Séguin-Bacon can justify their being cited for contempt of court cannot stand up.
[19] In Mr. Perras' case, he received a detailed report made pursuant to the Immigration Act, s. 27.1, and Part IX of that report recommended that there be no inquiry direction.
[20] It appeared that Mr. Perras, exercising the discretion contemplated by s. 27(3) of the Act, decided to issue an inquiry direction on or about January 7, 1999 based on paragraph 37 of the affidavit of Jeffrey Gullickson dated March 24, 2000.
[21] The plaintiff suggested that by going against the recommendation of Jeffrey Gullickson and signing this inquiry direction Michel Perras was guilty of contempt of court and should have to answer this charge.
[22] I cannot accept this position, since Mr. Perras exercised the discretion conferred by the Act and had no duty to follow the recommendation made to him. He was completely free to issue an inquiry direction as he did on January 7, 1999.
[23] I have reviewed the conclusions of the decision by Tremblay-Lamer J. on October 30, 1998, and her conclusions only apply to the inquiry conducted by the CSIS, not to an inquiry pursuant to s. 27 of the Immigration Act, which is expressly provided for by the Act. On reading the judgment of Tremblay-Lamer J. and the decision by Mr. Perras to issue an inquiry direction, it is impossible to conclude that the decision could in any way constitute contempt of court.
[24] Diane Séguin-Bacon sent an e-mail to Johanne Deslauriers at 8:19 a.m. on October 14, 1998 telling her of the hearing held before Tremblay-Lamer J. and forwarding certain information about the general impression given at the hearing held the day before.
[25] Another e-mail from Jeffrey Gullickson to Diane Séguin-Bacon was also filed in Court as Exhibit R-17, indicating that the plaintiff had been the subject of a report pursuant to s. 27.1(d)(ii) of the Immigration Act and would shortly be summoned for an interview to determine whether a recommendation would be made for an inquiry. These two e-mails on October 14 and 15, 1998 are subsequent to the hearing before Tremblay-Lamer J., but also prior to the decision made on October 30, 1998. It is inconceivable for the plaintiff to be able to suggest that this exchange of e-mails between two officials on October 14 and 15, 1998 could constitute contempt of court of a decision made on October 30, 1998, two weeks later, or could be regarded as a way of interfering with the orderly administration of justice. These allegations must be dismissed.
[26] I accordingly conclude that the motions to cite for contempt of court in the cases of Michel Perras and Diane Séguin-Bacon must be dismissed and in this regard, in the particular case of these two motions, I have no hesitation in considering that this motion was an abuse of process, I allow the preliminary objection by the defendant and I dismiss the motion in both cases with costs against the plaintiff.
[27] The situation is more complicated in the case of Roger Payette. It appeared that on June 22, 1998 the latter signed an affidavit which stated inter alia in para. 10 that the citizenship application made by the plaintiff should only be considered after authorization from CSIS (Canadian Security Intelligence Service).
[28] I have no hesitation in finding that when Roger Payette signed this affidavit on June 22, 1998 he was speaking the truth and had no intention of misleading the Court. However, the documents exchanged between various persons in the Department of Citizenship and Immigration, in particular a letter by Mr. Payette to Diane Desrosiers on July 14, 1998, three weeks after he signed his affidavit, clearly indicate that he had received information that radically altered the content of his affidavit. I quote Exhibit R-14 in full:
[TRANSLATION]
To: Desrosiers.Diane@8604BCZ
From: Payette.Roger@8602BCM
Cc: Redden.Rosemarie@8602BCM
Subject: CONILLE, Jean Édouard (Jean) - Aug. 11, 1967, Haiti
Attachment:
Date: 98-07-14 13:54
Hi. We have an application for judicial review relating to the cit application by the above person.
I have just received a clearance from CSIS and have also just obtained info. from one Pierre Briand - Imm Mtl that their inquiry is complete. I have also received no negative reply from "FOSS".
The criminal authorizations are currently under way.
Do you have any unfavourable info. in your files concerning the subject?
Please let us know.
Thank you.
Rp
[29] Another e-mail, dated September 18, 1998, also confirms that the authorizations missing from the file had been obtained. I also quote this e-mail in full:
[TRANSLATION]
From Payette.Roger@8602BCM@CINA, on 98-09-16 10:59
Hi.
Subject: CONILLE, Jean Edouard (Jean) - Aug. 11 1967, Haiti
Entry - P.R.: Oct. 20 1973
1st cit. appl: Nov. 18 1991 - N/A 5.1.c., Judge Wilcox - Jun 15 1995.
2nd cit. appl: Aug 07 1995, and at no time before the following have we had the three authorizations (which we now have in the file at this time).
Still to be done:
Send you the file and proceed (new photos, interview, hearing and so on)
Your comments please.
Thank you.
[30] Roger Payette was examined on his affidavit on July 24, 1998. I have reviewed the transcript, which is at pp. 76 to 134 of the plaintiff's record.
[31] Counsel for the plaintiff raised a number of questions about the [TRANSLATION] "security report" on the plaintiff.
[32] At the time of the examination Mr. Payette had been aware for at least a week that the authorizations from the Canadian Security Intelligence Service (CSIS) had all been obtained. However, he was very evasive and if it cannot be said that he lied in answering the questions it can at least be said that he evaded the issue and that what he was able to say in two or three lines of an e-mail sent to a colleague on July 14, 1998 he managed not to say in answering relatively clear questions by counsel on whether the authorizations from the Canadian Security Intelligence Service had been obtained, and this appears from the four or five pages of the transcript of his examination on this particular point.
[33] On reading the answers to question 118 appearing at p. 107 of the plaintiff's record and to questions 119, 120 and 121 it appeared that Mr. Payette was clearly reluctant to answer the questions put to him both in connection with a security inquiry by the immigration services and a security investigation by the Canadian Security Intelligence Service.
[34] Mr. Payette is not a novice and there is no doubt that he was aware that the CSIS inquiry was complete and that this important information about the positive conclusion of the inquiry in Mr. Conille's favour should have been added to his file. He knew he had signed on oath an affidavit which clearly mentioned that the CSIS authorization had not been obtained and that at the time of his signature on June 22, 1998 that affidavit was valid. However, Mr. Payette should have known that at the examination on July 24, 1998 it would have been entirely natural to provide this important information in response to questions by the plaintiff: he was given this opportunity to correct the information contained in his affidavit of June 22, 1998.
[35] Reading the decision by Tremblay-Lamer J. on October 30, 1998 makes it clear that this important information about the decision by CSIS was not given to the Court: otherwise, for obvious reasons, the conclusions of her judgment would not have been what they were.
[36] It seems to this Court that Roger Payette's conduct and his particular way of avoiding a direct response to the questions put to him on July 24, 1998 may be regarded prima facie as a means of interfering with the orderly administration of justice.
[37] I therefore conclude that the interests of justice would be served by citing Roger Payette to appear in Court at 9:30 a.m. on Monday, April 2, 2001 at 30 McGill Street, Montréal, Quebec and to be prepared to hear evidence of the act with which he is charged, namely deliberately concealing information from the Court by not correctly answering questions at the examination on affidavit held on July 24, 1998 and not taking the necessary steps to ensure that the information contained in an affidavit signed on June 22, 1998 was amended and made consistent with the facts before being submitted to the Court, which is a means of interfering with the orderly administration of justice. Roger Payette will also have to be prepared to file a defence pursuant to the provisions of Rules 466 and 467 of the Federal Court Rules (1998).
[38] Pascale-Catherine Guay was the solicitor of record and assisted Roger Payette in his examination on July 24, 1998.
[39] Although she did not answer the questions which were put to the witness, she intervened several times in the examination and knew or should have known that the information contained in the affidavit signed by Roger Payette on June 22, 1998 was no longer accurate in view of the information forwarded and received by Roger Payette on July 14, 1998, that is a little over a week before the examination.
[40] Further, in the reply record signed by Pascale-Catherine Guay on March 27, 2000 she admitted in paras. 13, 14 and 15 of her written submissions that the result of the investigation conducted by the Canadian Security Intelligence Service (CSIS), required under the Citizenship Regulations, had been received by the office of the Citizenship Registrar at the time of the cross-examination of Roger Payette on July 24, 1998 and at the time of the hearing before Tremblay-Lamer J. on October 13, 1998.
[41] Pascale-Catherine Guay appeared to justify the fact that this information was not given to the judge by suggesting that the immigration service had already expressed reservations about maintaining the result of its inquiry conducted under the Citizenship Act and already forwarded to the Citizenship Registrar's office. These facts do not appear to rest on anything but the allegations in the affidavit of Mary Eng, who mentioned she had undertaken to review the plaintiff's file from September 29, 1998 onwards, about two weeks before the hearing before Tremblay-Lamer J., and that reviewing the file had led to the issuing of a report under s. 27 of the Immigration Act, the day after the decision by Tremblay-Lamer J., Ms. Eng also mentioned that the issuing of the report was followed by an interview with the plaintiff and a detailed report submitted by Mr. Gullickson on December 23, 1998.
[42] Counsel for the defendant argued emphatically that there was no evidence in the record that Ms. Guay was aware of the changes that had taken place in Mr. Conille's file, namely the decision by CSIS.
[43] I find it hard to reconcile the suggestions that, on the one hand, Ms. Guay was not aware of a fact of capital importance in the record regarding the testimony by Roger Payette when she was assisting him at his examination, and on the other hand she was aware that Mary Eng, another official, had undertaken to review the file and arrived at the conclusion that a report should be issued pursuant to s. 27 of the Immigration Act, which proceedings were in their early stages.
[44] These arguments by the defendant raise more questions than they answer.
[45] In para. 15 of the defendant's written submissions it was argued that the result of the CSIS investigation conducted pursuant to the Contraventions Act was not obtained until after June 25, 1998, which was the latest date allowed the defendant to file affidavits in the case of this application for judicial review made by the plaintiff in May 1998.
[46] It was thereby suggested that even if the additional information was available after June 25, 1998 it was too late under the Rules to submit one or more supplementary affidavits for the hearing scheduled for October 13, 1998.
[47] This argument seems entirely futile: Ms. Guay should have known that any important information likely to assist the judge in making an informed decision should have been submitted to the Court. Parties may make a motion at any time to ensure that the Court is not misled or when exhibits entered in the record do not accurately represent the truth.
[48] A motion may even be made when judgment is under consideration.
[49] I therefore conclude that the plaintiff has submitted prima facie evidence of the alleged contempt.
[50] The Court accordingly directs Pascale-Catherine Guay to appear at 9:30 a.m. on Monday, April 2, 2001 in the Federal Court of Canada at 30 McGill St., Montréal, Quebec. At that time Pascale-Catherine Guay shall be prepared to hear evidence of the act with which she is charged, namely not taking the necessary steps to ensure that all the relevant facts known to her were brought to the attention of Tremblay-Lamer J. before the hearing of October 13, 1998, which is a means of interfering with the orderly administration of justice. At the same time, Pascale-Catherine Guay shall be prepared to file a defence pursuant to the provisions of Rules 466 and 467 of the Federal Court Rules (1998).
[51] Costs on the motion in respect of Mr. Payette and Ms. Guay shall follow the outcome of the case.
[52] I would note that the defendant will be entitled to costs in respect of Mr. Perras and Ms. Séguin-Bacon.
[53] As the motion was denied at the start of the hearing in respect of Christine Bernard and Louise Vinette, the defendant will be entitled to costs.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 9, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-1063-98
STYLE OF CAUSE: Jean Conille v. The Minister of Citizenship
and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 27, 2001
REASONS FOR ORDER
AND ORDER BY: Blais J.
DATED: March 9, 2001
APPEARANCES:
Jean Ernest Pierre FOR THE PLAINTIFF
Hugues Langlais
Bruno Pateras FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jean Ernest Pierre FOR THE PLAINTIFF
Montréal, Quebec
Pateras & Iezzoni FOR THE DEFENDANT
Montréal, Quebec