A-782-96
CORAM STONE J.A.
ROBERTSON J.A.
McDONALD J.A.
B E T W E E N :
JOSEF NEMSILA
Appellant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
- and -
| THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, CANADIAN JEWISH CONGRESS and FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES |
Intervenors
HEARD at Ottawa, on February 19 and 20, 1997.
Judgment delivered at Ottawa on Tuesday, May 27, 1997.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: ROBERTSON J.A.
McDONALD J.A.
A-782-96
CORAM STONE J.A.
ROBERTSON J.A.
McDONALD J.A.
B E T W E E N :
JOSEF NEMSILA
Appellant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
- and -
| THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, CANADIAN JEWISH CONGRESS and FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES |
Intervenors
REASONS FOR JUDGMENT
STONE J.A.
The issues in this appeal are in the form of three questions which were certified by the Trial Division pursuant to subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") in its order of October 4, 1996. These are:
| 1. Was a person "lawfully admitted" to Canada pursuant to the provisions of the Immigration Act (1950), R.S.C. 1952, c. 145, where that person, |
| (a) was a member of a prohibited class at the time he entered Canada, or |
| (b) was granted entry as a result of fraud or deception? |
| 2. If a person was not "lawfully admitted" to Canada could he acquire "domicile" within the meaning of that term in the Immigration Act, (1952), R.S.C. 1952, c. 325? |
| 3. Did s.19(1)(e)(iv) and (viii) of the Immigration Act, (1952), R.S.C. 1952, c. 325, operate so as to protect from removal a person who |
| (a) was a member of a prohibited class at the time of his admission to Canada, or |
| (b) came into Canada or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person, where that person was not "lawfully admitted" to Canada, and the person had resided in Canada for over five years, from the date of his entry into Canada prior to April 10, 1973?1 |
All three certified questions are interrelated. The concept of "lawful admission" lies at the heart of the questions. If the answer to the first question is in the negative, so too should the answer to the second. The third question will require an answer only if the answer to the first is in the negative. This interconnectedness is apparent.
For the sake of convenience I shall refer to the "Immigration Act (1950), R.S.C. 1952, c. 145", mentioned in the first question, as "c. 145, 1952". It was a consolidation of the Immigration Act, R.S.C. 1927 c. 93, as amended (the "1927 Act"). Chapter 145, 1952 went out of force on September 15, 1953 when the "Immigration Act, (1952), R.S.C. 1952, c. 325", referred to in the second and third questions, came into effect. It will be convenient to refer to this latter statute as "c. 325, 1952". It should be noted, nevertheless, that as the appellant was admitted to Canada on July 25, 1950, whether he was "lawfully admitted" is to be determined, strictly speaking, under the law that was in force at the time, namely, the 1927 Act as amended. The answer would be no different under c. 145, 1952 which, as I have observed, was a consolidation of the 1927 Act as amended. The acquisition of "domicile" by the appellant was governed by the 1927 Act as amended and, later, by c. 325, 1952, in view of the fact that the appellant, as any person in his position, could acquire "Canadian domicile" only after being "domiciled" in Canada for a period of at least five years after having been "landed" here.
BACKGROUND
The Appellant
On July 25, 1950, the appellant, a native of Czechoslovakia, upon arrival by ship from Europe, presented himself at Halifax, Nova Scotia, to an immigration officer who stamped the words "Landed Immigrant" adjacent to the appellant's name on a Canadian Immigration Service document titled "Canadian Government Return". He resided in Canada thereafter until his recent death, but never became a Canadian citizen. The death of the appellant requires consideration of whether the Court should exercise its discretion to render judgment despite the mootness. Before addressing that question it will be helpful to outline the circumstances out of which the certified questions arose and to briefly describe the manner in which the case was disposed of by the adjudicator and by the Motions Judge.
On April 5 and 6, 1995, two reports were made pursuant to paragraphs 27(2)(g) and 27(1)(e)2 of the Act. These reports alleged that the appellant, as a member of the Hlinka Guard and the alerted unit of that Guard, had "participated in and was responsible for the arrest, detention, interrogation and the execution of civilians during the fall and winter of 1944-45, in the Banska Bystrica region of Slovakia and near the villages of Krupina and Krmenicka in Slovakia", and that in consequence of this conduct he was convicted of an offence on December 4, 1947 in Czechoslovakia, and that he escaped custody in 1949 and fled. They further alleged:
| -- when he applied to immigrate to Canada [he] made misrepresentations during the interviews with visa control and immigration officers regarding his employment and military service during the Second World War, and his membership and activities in the Hlinka Guard and the alerted unit of the Hlinka Guard, and regarding his conviction in Czechoslovakia. This information was material to his admission to Canada. |
| -- [he] came into Canada on July 25, 1950, at Halifax by not fully disclosing accurate and correct information regarding his residence, occupations, military service and membership in the Hlinka Guard, and the alerted unit of the Hlinka Guard, and the fact of his conviction in Czechoslovakia, and by averting further inquiries into his background, answers to which would have led to the refusal of his application for an immigrant visa. |
The Adjudicator's Decision
The allegations made in these reports formed the basis of an inquiry by an adjudicator pursuant to subsection 27(3) of the Act, which was held with a view to determining whether the appellant should be deported from Canada. The appellant could not be deported, however, if the adjudicator decided that he was not a person described in subsection 27(1) or (2) of the Act. By his decision of July 18, 1995, the adjudicator determined that the appellant could not be so described because he had been "lawfully admitted" to Canada and, therefore, his "landing" was not void ab initio by reason of failure to disclose at the time of admission to Canada his activities of 1944-1945, the fact of conviction in 1947 and subsequent escape from custody. It followed, in his view, that section 123 of the Act3 protected the appellant from deportation.
The adjudicator rejected the contention that section 123 offered no protection. The respondent had argued before him that the legislation that was in effect on July 25, 1950, prevented the acquisition of "Canadian domicile" unless the appellant was first "landed" in Canada, and that the appellant was never "landed" because he had not been "lawfully admitted" as required by the statutory definition of "land", "landed" or "landing" then in effect. It was of no relevance to the adjudicator that, at the time of admission, the appellant belonged to a "prohibited class" or that, on the assumed facts, he was admitted to Canada by fraud or deception. A person who belonged to a prohibited class or who had misrepresented a material fact could be deported at any time before acquiring "Canadian domicile" but not afterward, except on certain specified grounds none of which are applicable here. The adjudicator rejected the argument that the "landing" was void ab initio. To him the idea of a "landing" being void ab initio was inconsistent with the scheme of the legislation, and its adoption would render "nearly meaningless" the clearly intended protection from deportation of a person with "Canadian domicile". At pages 7-8 of his decision, he stated:
| I agree with Counsel that the meaning of "landing" as it was defined in 1950 and as it is defined now is substantially the same and the essential element is "lawful". The Case Presenting Officer's position appears to be that, prior to 1978, the meaning of "lawful" in the definition was substantive, but after 1978 is procedural. Adopting that argument would give rise to a situation Counsel describes as absurd. Section 19(1)(e)(iv) of the Immigration Act, 1952, refers to persons who were members of any prohibited class at the time of landing. In addition to persons convicted of crimes involving moral turpitude, persons with tuberculosis were prohibited, as were prostitutes, epileptics, homosexuals and others. If the Minister's reasoning is followed, any one of these persons, (a homosexual for instance who misrepresented his sexual orientation when landed), is not now a permanent resident. This person has no status in Canada. This is the true meaning and impact of the void ab initio argument. Any person who misrepresented a fact placing that person in a prohibited class at the time of landing has no status in Canada and is open to investigation, inquiry and deportation without recourse to the Appeal Division. |
| The Case Presenting Officer argues that times have changed and it is now recognized that there is a qualitative difference between criminals who are still inadmissible and other persons who are not. This is not the point at issue. The effect of this argument is that any person who misrepresented a specific ground of prohibition was not landed because the landing was void ab initio. The result would be that the person was never entitled to live and work in Canada. |
| Domicile, as Counsel demonstrated in explaining the evolution of the concept, was intended to protect landed immigrants from, among other things, deportation from Canada if they were members of a prohibited class at the time of landing. After five years, the person's actions in Canada became more important in terms of deportation than activities prior to landing, and a person acquired a qualified right to remain in Canada. |
Later, at page 10, he added:
| There was a five year "window of opportunity" during which deportation proceedings could have been initiated against the person concerned. Once he acquired domicile that window was closed. |
To hold otherwise, he concluded, would be to run counter to what he described as "forty-five years of immigration policy, practice, and procedure".
The Motions Judge's Decision
The respondent challenged the adjudicator's decision by way of judicial review in the Trial Division. By his order of October 4, 1996, the Motions Judge overturned it. He agreed that in order for the appellant to have acquired "Canadian domicile" he had to have been domiciled in Canada for at least five years "after having been landed in Canada". In his view, the appellant was unable to satisfy this requirement because, not having been "lawfully admitted" to Canada in the first place, he had not been "landed" in this country on July 25, 1950. The Motions Judge found support for this view in Rex v. Jawala Singh (1938), 3 W.W.R. 241 (B.C.C.A), Michelidakis v. Reginbald (1917), 23 R. de J. 375 (Que. S.C.) and Canada v. Luitjens (1991), 46 F.T.R. 267 (F.C.T.D.). It was, in the view of the Motions Judge, a pre-condition to the acquisition of "Canadian domicile" under the law as it stood in 1950 that an immigrant be first "landed" in Canada.
The Motions Judge rejected an argument that paragraph 19(1)(e)(viii) of c. 325, 1952, afforded the appellant protection from deportation. As he stated, at pages 7-9:
| The Adjudicator interpreted subparagraph (viii) to mean that an immigrant who has acquired Canadian domicile through fraudulent misrepresentation could not be subject to a removal order. In so finding, he accepted the respondent's argument that section 19 exempted a person with domicile from deportation, where that individual entered Canada by reason of any false or misleading information or other fraudulent or improper means. According to the respondent, if the Minister is correct in his submission that domicile cannot be acquired by a person who was landed after providing false or misleading information, then there would be no purpose to this aspect of section 19 and it would be rendered virtually meaningless. If an individual cannot ever acquire domicile because the admission was not lawful in the first place, the respondent maintains that the protection of domiciled persons from removal for misrepresentation in relation to admission would never be operative. The respondent submits that the clear purpose of subparagraph 19(1)(e)(viii) was to protect from deportation citizens and domiciled individuals who may have acquired admission by providing false or misleading information. |
| There therefore appears to be a conflict between "lawful admission" as a condition precedent to obtaining domicile in Canada and the apparent protection from deportation provided for in subparagraph 19(1)(e)(viii) for those persons who were admitted by reason of giving false information. As is often the case, it is necessary for the Court to give meaning to both provisions and to reconcile the apparent conflict. |
| It must be understood that section 19 of the Act is not concerned with the acquisition or loss of domicile nor does it define who was eligible to acquire Canadian domicile. Those matters are governed by the sections of the Act which specifically set out the rules regarding acquisition and loss of domicile. The preamble in paragraph 19(1)(e) is clear that before the section can apply to exempt removal, one must be a Canadian citizen or a person who has acquired Canadian domicile in the manner prescribed by the legislation. They are, therefore, conditions precedent to exemption from removal and for that reason the provisions governing domicile and citizenship must be first properly construed before subparagraph 19(1)(e)(viii) can have any application. Accordingly, the protection of subparagraph 19(1)(e)(viii) can only extend to an immigrant such as Mr. Nemsila if he has satisfied the requirements of domicile as set out in section 4 of the Immigration Act, 1952, which he, for the reasons set out above, cannot have done if the allegations contained in the section 27 reports are correct. |
| Furthermore, section 19 does not speak of gaining admission into Canada by means of false or misleading information. Subparagraph 19(1)(e)(viii) refers to individuals, who are not citizens or who are not domiciled, who come into Canada by means of false or misleading information. The term "came into" is not synonymous with "admission" or "landing", words which are given an express and precise meaning in the definition section of the Act. |
| I am confirmed in my view that the phrase "came into Canada" in subparagraph 19(1)(e)(viii) does not mean "admission" or "landing", by section 3 of the Immigration Act, 1952, which provides as follows: |
| 3. (1) A Canadian citizen has the right to come into Canada. |
| (2) Subject to subsection (3), a person who is not a Canadian citizen but has acquired and has not lost Canadian domicile shall be allowed to come into Canada. |
| In accordance with that provision, therefore, individuals who possess the status of citizenship and domicile also possess the right to come into Canada. Should they do so by means of false or misleading information, section 19 will protect them from a removal order. This does not alter the fact however, that they must have first acquired citizenship or domicile in accordance with the provisions of the legislation, which, in the case of domiciled persons, means that they must have been "lawfully admitted". |
MOOTNESS
This appeal was fully argued on its merits on February 19 and 20, 1997. In April 1997, before judgment could be rendered, the appellant died. At the invitation of the Court, counsel of record have filed written representations on the question of whether the Court should render a judgment on the merits of the appeal despite the death of the appellant. All three intervenors were accorded the same status in the proceedings below where, as here, they supported the position of the respondent. It is apparent that the death of the appellant has rendered the appeal moot: R. v. Mercure4; Borowski v. Canada (Attorney General)5. The whole object of the proceedings before the adjudicator was to determine whether the appellant could be deported as a person falling within the descriptions in paragraphs 27(1)(e) and 27(2)(g) of the Act. His death renders that question academic.
It remains, nevertheless, to consider whether the Court should exercise its discretion to render a judgment. Counsel for the parties and for Friends of Simon Wiesenthal Centre for Holocaust Studies argue that judgment be rendered despite the mootness. Counsel for the other intervenors, Canadian Jewish Congress and The League for Human Rights of B'Nai Brith Canada, contend that judgment ought not to be rendered. That the Court has the discretion to render judgment is clear from Borowski, supra. In that case, Sopinka J., for the Court, held that there is a two-step approach to the question of mootness. A court must first decide if the "tangible and concrete dispute"6 has disappeared. If it has - as in the case with the death of the appellant - the appeal becomes moot. It is then that a court must decide whether to exercise its discretion to hear and determine the appeal. This discretion is "to be judicially exercised with due regard for established principles".7
In Borowski, supra, Sopinka J. put forth three rationalia for the policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question in the sense that no present live controversy exists which affects the rights of the parties. The first is that a court's competence to resolve a legal dispute is rooted in the adversary system. This rationale was explained by Sopinka J. as follows8:
| The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context. |
The second is a concern for judicial economy. It was explained by Sopinka J. as follows9:
| It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants. The fact that in this Court the number of live controversies in respect of which leave is granted is a small percentage of those that are refused is sufficient to highlight this observation. The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. |
The third requires a court to demonstrate a measure of awareness of its proper law-making function. This was explained by Sopinka J., in relation to the Supreme Court of Canada, as follows10:
| The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. |
At the same time, Sopinka J. cautioned against the rigid application of these rationalia, when he stated:11
| In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa. |
Turning then to the first rationale - the need for an adversarial context. The issues in the appeal were "well and truly argued" by the parties and the intervenors on February 19 and 20, 1997, at which time the necessary adversarial context existed. Taken by itself, however, this factor is not determinative.
The second rationale is a concern for judicial economy. As we have seen, this concern may be answered "if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it". In Borowski, supra, Sopinka J. illustrated three different situations where this concern may be answered. The first is that it may be practically answered where "the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action".12 Secondly, expenditure of scarce judicial resources "is considered warranted in cases which although moot are of a recurring nature but brief duration"13. Even in cases of that kind, Sopinka J. cautioned against the hearing of an appeal, when he stated:14
| The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. |
The third situation, described by Sopinka J. as "rather ill-defined", is where cases
| ...raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law.15 |
I am not unmindful that the case has proceeded through two stages, that an extensive record has been developed and that considerable resources have been plainly spent. However, an argument based upon considerations of that kind was rejected by Sopinka J. in Borowski, supra, where he stated:16
| Counsel for the appellant argued that an extensive record had been developed in the courts below which would be wasted if the case were not decided on the merits. Although there is some merit in this position, the same can be said of most cases that come to this Court. To give effect to this argument would emasculate the mootness doctrine which by definition applies if at any stage the foundation for the action disappears. |
While the record suggests that the answers to the questions posed "will be relevant to other cases involving the deportation of persons alleged to have entered Canada after World War II in similar circumstances which are currently pending"17, it is far from clear that the present case is typical of other cases that may be pending or are bound to follow. The respondent has not identified any of these "other cases" by reference to court files or otherwise; nor has she shown that they involve circumstances such as are present in this appeal of persons who, like the appellant, before they entered Canada under the law that was consolidated in c. 145, 1952, are alleged to have engaged in activities that render them deportable under the Act. Evidence of pending cases involving revocation of citizenship pursuant to the Citizenship Act, R.S.C. 1985, c. C-19, was filed by the respondent.18 The present appeal does not involve revocation of citizenship. Moreover, the law in effect at the time the appellant entered Canada as an immigrant on July 25, 1950 made no provision for admission "for permanent residence"; rather, it provided for admission with the intention of acquiring "Canadian domicile". Admission for permanent residence was for the first time provided for in c. 325, 1952.
A consideration of the second rationale leads me to exercise the discretion against rendering judgment. Firstly, in my view, this is not a case where a decision would have practical side effects on the rights of the parties. The whole purpose of the proceedings under section 27 of the Act was to determine whether the appellant should be deported from Canada as a person described in paragraphs 27(1)(e) and 27(2)(g). The death of the appellant renders that purpose academic. Secondly, I am not persuaded that this is a case of "a recurring nature but brief direction". As indicated above, the evidence is not entirely clear whether the issues which arise in this appeal are likely to recur and that unless the dispute is resolved now it will have disappeared before it is ultimately resolved. Thirdly, I do not consider that the issue of public importance involved in this appeal is, of itself, sufficient to overcome mootness for the reason that there are special circumstances which make it worthwhile to apply scarce judicial resources to resolve it. The provisions of subsection 83(1) of the Act are of some relevance. They read:
| 83.(1) A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
This Court has held that to be certifiable under this subsection, a question must be one that "transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance of general application" and be determinative of the appeal.19 The requirement in subsection 40(1) of the Supreme Court of Canada Act, R.S.C. 1985, c.-S-26, as amended, that an appeal involved a question of "public importance" was not, by itself, considered an answer to mootness in Borowski, supra, where Sopinka J. stated:20
| Patently, the mere presence of an issue of national importance in an appeal which is otherwise moot is insufficient. National importance is a requirement for all cases before this Court except with respect to appeals as of right: the latter, Parliament has apparently deemed to be in a category of sufficient importance to be heard here. There must, therefore, be the additional ingredient of social cost in leaving the matter undecided. |
The Court is asked on this appeal to interpret the terms "lawful admission" and "landed" under the law as it stood on July 25, 1950, and to determine whether belonging to a "prohibited class" or failing to disclose the alleged Second World War activities, the 1947 conviction and the subsequent escape from custody, prevented the appellant from being "landed" and from acquiring "Canadian domicile" under that law. If it were clear that other cases now pending or that are bound to follow will raise the issues arising in this appeal it would then be arguable that there would be a "social cost in leaving the matter undecided".
The final rationale of the mootness doctrine is the need for a measure of awareness of a court's proper law-making function. Parliament intended that the responsibility of appellate review should rest with this Court at first instance. The issues in the present appeal, being ones of statutory interpretation, are within this Court's traditional law-making role. This Court, nonetheless, is not the ultimate arbiter of the dispute involved in this appeal. That role belongs to the Supreme Court of Canada. This in itself raises the concerns advanced by the Canadian Jewish Congress against rendering judgment. In cases such as Borowski, supra, and the subsequent case of Tremblay v. Daigle,21 no question of a further appeal could arise. By contrast, regardless of whether the present appeal was disposed of for or against the position of the appellant, the death of that party means that counsel could not be instructed on seeking or opposing a possible application for leave to appeal to the Supreme Court of Canada or in arguing the merits of an appeal before that Court. Neither is there here the presence of an intervenor who could supply the required adversarial context at that stage. All three of the intervenors took positions in argument that were completely opposed to that of the appellant. In Law Society of Upper Canada v. Skapinker,22 the respondent remained a party despite the mootness of the appeal and the intervenor was found to be in the same interest as that of the respondent. In Mercure, supra, the intervenors were authorized by the Supreme Court to continue the appeal "as principal parties" after the death of the respondent before the appeal could be heard.
I would dismiss the appeal on the ground that it is moot.
"A.J. STONE"
J.A.
"I agree
J.T. Robertson J.A."
"I agree
F.J. McDonald"
FEDERAL COURT OF CANADA
Court No. A-782-96
BETWEEN:
| JOSEF NEMSILA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, CANADIAN JEWISH CONGRESS and FRIENDS OF SIMON WIESENTHAL CENTER FOR HOLOCAUST STUDIES |
________________________________________
REASONS FOR JUDGMENT
________________________________________
__________________
1 As will appear later in these reasons, the statute in force on July 25, 1950 was the Immigration Act , R.S.C. 1927, c. 93, as amended. That statute was consolidated in the revised statutes of 1952 as c. 145. The Immigration Act, R.S.C. 1952, c. 325 came into force on September 15, 1953, and by virtue of it c. 145 was repealed.
2 Paragraphs 27(1)(e), 27(2)(g) of the Act read:
27.(1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who...(e) was granted landing by reason of possession of a false or improperly obtained passport, visa or other document pertaining to his admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person;
...
(2) An immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who...(g) came into Canada or remains in Canada with a false or improperly obtained passport, visa or other document pertaining to that person's admission or by reason of any fraudulent or improper means or misrepresentation of any material fact, whether exercised or made by himself or by any other person;
3 Section 123 reads:
123. Where a person acquired Canadian domicile in accordance with the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1970, and did not lose Canadian domicile before April 10, 1978, a deportation order may not be made against that person on the basis of any activity, carried on by him before that date, for which a deportation order could not have been made against him under that Act. 1976-77, c. 52, s. 127.
5 [1989] 1 S.C.R. 342, at p. 355.
17 Affidavit of Michelle Julfs, sworn October 22, 1996.
18 The affidavit of Michelle Julfs, sworn May 1, 1997, states that "there are currently eight revocation proceedings filed in...the Trial Division involving alleged World War II Nazi collaborators" and that "two other revocation proceedings, also involving alleged World War II activities, which will be filed with the...Trial Division within the next few weeks". Subsections 10(1) and (2) of the Citizenship Act , read:
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.
19 Liyanagamage v. Canada (Minister of Citizenship and Immigration), (1994), 176 N.R. 4 (F.C.A.), at p. 5.