Canada (Citizenship and Immigration) v. Kljajic

Canada (Citizenship and Immigration) v. Kljajic
Court (s) Database
Federal Court Decisions
Date
2020-04-30
Neutral citation
2020 FC 570
File numbers
T-1336-17
Notes
Reported Decision A correction was made on May 14, 2021.
Decision Content
Date: 20200430
Docket: T-1336-17
Citation: 2020 FC 570
Ottawa, Ontario, April 30, 2020
PRESENT: THE CHIEF JUSTICE
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Plaintiffs
and
CEDO KLJAJIC
Defendant
JUDGMENT AND REASONS
I. Introduction
[1] War can bring out the worst in people. Some do things that they later regret, perhaps deeply so. Others may act in ways that haunt, shame or torment them for the rest of their lives. They may understandably want to hide such things, from others and indeed themselves, as they endeavour to build a new life for themselves and their progeny, some of whom may have come along well after the distant events.
[2] Yet, as much as compassion for such people can reflect a virtuous aspect of the human spirit, a civilized society cannot turn its back on the victims of distant crimes. Not even after decades of law abiding behaviour and hard working contributions to society by those who may have been complicit in such crimes. The light of the law must be allowed to shine on all of the circumstances surrounding dark deeds that may later be discovered, so that the role of those who may have been involved can be scrutinized for what it was and was not.
[3] In this proceeding, the plaintiff Ministers allege that Mr. Kljajic obtained refugee protection, permanent residence, and ultimately citizenship in this country by concealing his former high-ranking position of Under Secretary of the Ministry of Internal Affairs of the Bosnian Serb Republic [the “RS MUP”]. They further allege that he explicitly, and falsely, denied any involvement in the commission of any war crime or crime against humanity.
[4] In addition, they allege that there are reasonable grounds to believe that Mr. Kljajic is inadmissible to Canada on two grounds:
First, for having been a prescribed senior official in the service of a government that, in the opinion of the Minister, engaged in systematic or gross human rights violations, genocide, war crimes and crimes against humanity, within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act [the “CAHWCA”], as contemplated by paragraph 35(1)(b) of the Immigration and Refugee Protection Act [the “IRPA”].
Second, for having been complicit in the commission of acts outside Canada that constitute an offence referred to in sections 6 and 7 of the CAHWCA, and as contemplated by paragraph 35(1)(a) of the IRPA.
[5] At the time Mr. Kljajic sought refugee status and permanent residence in this country, the Bosnian Serb government was designated as a government described under paragraph 19(1)(l) of the Immigration Act, RSC, 1985, c I-2 [the “Immigration Act”], i.e., a government generally described above. However, given that the CAHWCA had not yet been enacted, the crimes were defined by reference to subsection 7(3.76) of the Criminal Code, RSC, 1985, c C-46 [the “Criminal Code”]. For the present purposes, the differences between the latter provision and subsections 6(3) to (5) of the CAHWCA are not material: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at para 118 [“Mugesera”].
[6] Given the above, the plaintiffs seek various declarations against Mr. Kljajic pursuant to sections 10.1(1), 10.2 and 10.5(1) of the version of the Citizenship Act, RSC 1985, c C-29 that was in force at the time they served and filed their Statement of Claim [the “Citizenship Act”].
[7] For the reasons that follow, those declarations will be granted, with certain modifications. In brief, I have concluded that:
Mr. Kljajic became a permanent resident of Canada by false representation or fraud or by knowingly concealing material circumstances with respect to a fact described in section 35 of the IRPA;
Because of having acquired permanent resident status, Mr. Kljajic subsequently obtained citizenship in Canada, and therefore is presumed, pursuant to s. 10.2 of the Citizenship Act, to have obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances with respect to a fact described in section 35 of the IRPA;
Mr. Kljajic is inadmissible to Canada pursuant to paragraph 35(1)(b) of the IRPA, because there are reasonable grounds to believe that he was a prescribed senior official of a government described in that provision (and at paragraph 4 above); and
Mr. Kljajic is inadmissible to Canada pursuant to paragraph 35(1)(a) of the IRPA, because he was complicit in the crimes against humanity that were perpetrated by the RS MUP against non-Serbs during the period that he was the Under Secretary of that organization.
II. Background
[8] The following background information was provided in an expert report prepared on behalf of the plaintiffs by Dr. Christian Axboe Nielsen. This particular information was not contested by Mr. Kljajic.
[9] The Socialist Federal Republic of Yugoslavia [“Yugoslavia”] was established in 1945, following the Second World War. Throughout its existence of approximately 45 years, it consisted of six republics: Slovenia, Croatia, Bosnia and Herzegovina [“B&H” (also sometimes referred to simply as “Bosnia”)], Serbia, Montenegro and Macedonia.
[10] During the Second World War, several large massacres of the civilian population were perpetrated in Bosnia, including during internal conflicts between the Serb, Croat and Muslim ethnic groups.
[11] Following that war, Yugoslavia was tightly controlled by the Communist Party of Yugoslavia, later known as the League of Communists of Yugoslavia. However, in the wake of the fall of the Berlin Wall in late 1989, the grip of the communists waned. In B&H, this led to multi-party elections in November 1990. Three ethnically defined anti-communist parties – the Serb Democratic Party [the “SDS”], the Croat Democratic Union [the “HDZ”] and the Muslim Party of Democratic Action [the “SDA”] – emerged as the main victors. Shortly afterwards, they reached an agreement to divide various government positions, including those related to policing and security, based on the electoral results.
[12] In principle, the SDS, HDZ and SDA agreed that it was desirable for the ethnic composition of the police in any given municipality to match the ethnic composition of the population of that municipality. Nevertheless, negotiations regarding appointments quickly became protracted and acrimonious.
[13] Policing in the socialist republic of B&H was under the jurisdiction of the Ministry (or Secretariat) of Internal Affairs [the “SRBiH MUP”], which had two main branches: the public security service and the state security service. The public security service encompassed the most common types of policing, including criminal investigations and the maintenance of law and public order. The state security service (colloquially known as the “secret police”) was responsible for protecting the constitutionally established order from internal and external threats. Leadership and other positions in both branches of the SRBiH MUP were particularly coveted by those who were in charge of the SDS, HDZ and SDA, respectively. This was because of that Ministry’s access to arms and electronic surveillance equipment, and the critical role it played in controlling the public.
[14] Over the course of 1991, the political and security situation in B&H continued to deteriorate. Among other things, this was due to (i) the declarations of independence that were made that year by the Republic of Slovenia and the Republic of Croatia, (ii) the adverse impact that those declarations had on relations between the Croat, Muslims and Serbian peoples, and (iii) disputes among the SDS, HDZ and SDA relating to positions in the SRBiH MUP and elsewhere. This led to a parliamentary crisis in October, after Bosnian Muslim and Bosnian Croat deputies voted to become a sovereign state. This was strongly opposed by the Serb deputies, who considered that it was in the best interest of Serbs in B&H to remain with Yugoslavia. Among other things, the Serbs were very concerned because they were an ethnic minority in large areas of B&H, including much of the northern, western and southeastern regions of B&H.
[15] Given the separatist direction that the Muslim and Croat members of the Bosnian Assembly had decided to take, the SDS unilaterally withdrew from the Assembly. In a speech explaining this action, the SDS’s President, Radovan Karadzic, told the Muslim members of Assembly that if they continued to pursue a path towards independence, they would be “pursuing a path that leads to hell”. He then rhetorically asked whether they realized that “pursuing independence might well lead to their physical extermination”: Court Transcript, Vol. 1, at 131 (testimony of Dr. Nielsen).
[16] In the meantime, in September 1991, Mr. Kljajic was appointed to the position of Deputy to the Assistant Minister of the SRBiH MUP, a position which included the position of Chief of Police for B&H. (He had previously held a number of policing positions in the SRBiH, dating back to at least 1979.)
[17] Following a referendum vote by the Bosnian Serbs in November 1991 to remain in Yugoslavia, the SDS quickly took steps to establish a political entity with all of the characteristics of a state, including its own police force. To this end, the SDS issued a document in December 1991, entitled Instructions for the Organization and Operation of Organs of the Serbian People in [B&H] in Emergency Conditions, which set out a detailed set of steps to be taken. Those steps included the takeover of SRBiH MUP staff, buildings and equipment, and their integration within what would become the RS MUP. This applied to areas in which the Serbs were a majority [“Variant A” areas] as well as to areas in which they were a minority [“Variant B” areas], although the approach to be taken in those two types of areas differed in some respects.
[18] In January 1992, the Assembly of the Serb People in Bosnia and Herzegovina [the “RS Assembly”] then proclaimed the Serb Republic of Bosnia and Herzegovina [the “Republic of Srpska” or “RS”]. (The Republic of Srpska is not to be confused with Serbia, one of the original six republics of the former Yugoslavia, which is located immediately to the east of B&H.) The following month, the Bosnian Serbs boycotted a second referendum that resulted in a vote to become independent from Yugoslavia. On March 18, 1992, the President of the Assembly, Momcilo Krajisnik, referred to the need for “ethnic separation on the ground”. Shortly afterwards, on March 27, 1992, the RS Assembly proclaimed the Constitution of the Serb Republic of Bosnia and Herzegovina and established a National Security Council, chaired by the Republic’s President, Radovan Karadzic.
[19] A few days later, on March 31, 1992, and after the SDS had created a parallel policing organization covering many areas of the RS, a new law creating the RS MUP came into force. The next day, the RS MUP proclaimed itself to have sole police jurisdiction throughout the RS. On approximately April 5, Serbs (including Mr. Kljajic) who had refused to comply with orders to continue fulfilling their responsibilities to the SRBiH MUP were fired from that organization, the Bosnian war broke out, and Mr. Kljajic was appointed to the position of Undersecretary for Public Security of the RS MUP.
[20] It appears to be common ground between the parties that Mr. Kljajic held the latter position for at least approximately five months, i.e., from virtually the outbreak of the war in early April 1992 until September of that year. (The plaintiffs maintain that he stayed in that position until November of that year, when he left Bosnia to become a lawyer in Belgrade. This will be further discussed in part VIII.C.(2)(v) of these reasons below.)
[21] During his time as Under Secretary of the RS MUP, Mr. Kljajic was initially located in Vraca, a suburb of Sarajevo. While he was there, he was, among other things, responsible for the defence of the police academy, where he was located. Sometime in the first half of June 1992, he transferred to Pale, the principal headquarters of the RS MUP, before they were moved to Bijeljina later that month. He remained in the latter location until he left the RS MUP sometime in the fall of 1992.
[22] In February 1995, Mr. Kljajic applied for permanent residence in Canada as a member of the refugee class. In August of that year, his application [the “PR Application”] was granted. He then became a Canadian citizen in November 1999.
[23] In June 2016, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia [the “ICTY”] sentenced the Minister with whom Mr. Kljajic worked at the RS MUP, Mr. Mico Stanisic, to 22 years imprisonment for having committed “through participation in a joint criminal enterprise (JCE), persecutions as a crime against humanity and murder and torture as violations of the laws or customs of war”. (Christian Axboe Nielsen, Report on the Establishment and Performance of the Ministry of Internal Affairs of Republika Srpska in Bosnia and Herzegovina, 1990-1992 [the “Nielsen Report”], at para 233, quoting the ICTY Case Information Sheet IT-08-91) On the same date, the Appeals Chamber of the ICTY imposed a similar sentence, for that same crime plus others, against a person who is alleged to have been one of Mr. Kljajic’s direct subordinates, namely, Mr. Stojan Zupljanin.
[24] Given that I will be discussing certain interactions that Mr. Kljajic had with Radovan Karadzic, the President of Republika Srpska during the Bosnian War, I will simply note in passing that Mr. Karadzic was convicted and sentenced by the Trial Chamber of the ICTY to 40 years of imprisonment for genocide, crimes against humanity, and violations of the laws or customs of war.
III. Relief sought by Plaintiffs
[25] In their Statement of Claim, the plaintiffs sought five declarations.
[26] The first two concerned the allegations that Mr. Kljajic obtained permanent residence in Canada by false representation or fraud, or by knowingly concealing material circumstances. In this regard the plaintiffs sought declarations, for the purposes of section 10.2 of the Citizenship Act, that Mr. Kljajic obtained permanent resident status in this manner because, had he been truthful with Canadian immigration officials when he applied for permanent residence in 1995, he would have been found inadmissible:
under paragraph 19(1)(l) of the Immigration Act, on the grounds that he was a senior member in the service of a government that was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity within the meaning of section 7(3.76) of the Criminal Code, as it then was; and
under paragraph 19(1)(j) of the Immigration Act, as a person who there are reasonable grounds to believe has committed an act or omission outside Canada that constitutes a war crime or a crime against humanity within the meaning of section 7(3.76) of the Criminal Code, as it then was.
[27] In their final submissions, the plaintiffs consolidated the two declarations described above into a single, more streamlined, requested declaration. In this regard, they now request, for the purposes of s. 10.2 of the Citizenship Act, a declaration that Mr. Kljajic obtained permanent resident status in Canada by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 35 of the IRPA.
[28] The third declaration sought in the plaintiffs’ Statement of Claim also relates to an alleged false representation or fraud or knowing concealment. In particular, the plaintiffs seek a declaration, pursuant to subsection 10.1(1) of the Citizenship Act, that Mr. Kljajic obtained Canadian citizenship in the manner described in the immediately preceding paragraph.
[29] The fourth and fifth declarations sought by the plaintiffs in their Statement of Claim concern Mr. Kljajic’s alleged inadmissibility to Canada under paragraphs 35(1)(a) and (b) of the IRPA, respectively. Specifically, the plaintiffs seek declarations, pursuant to subsection 10.5(1) of the Citizenship Act, that Mr. Kljajic is inadmissible:
under paragraph 35(1)(a), on grounds of committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the CAHWCA; and
under paragraph 35(1)(b), on grounds of his being a prescribed senior official in the service of a government that, in the opinion of the Minister of Immigration, Refugees and Citizenship Canada, engages in or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the CAHWCA.
IV. Relevant Legislation
[30] This proceeding raises issues under the Citizenship Act, the IRPA and its predecessor (the Immigration Act), the CAHWCA and the Criminal Code.
[31] To determine which legislation applies to which issues, it has been considered to be helpful to distinguish between a defendant’s substantive rights and his or her procedural rights: Canada (Minister of Citizenship and Immigration) v Rogan, 2011 FC 1007, at paras 17-23 [“Rogan”]; Canada (Minister of Citizenship and Immigration) v Halindintwali, 2015 FC 390, at paras 24-25 [“Halindintwali”].
A. Mr. Kljajic’s substantive rights
[32] Insofar as Mr. Kljajic’s acquisition of Canadian citizenship is concerned, his substantive rights are governed by the citizenship legislation that was in force on November 30, 1999, when he obtained his Canadian citizenship, namely, the Citizenship Act, RSC 1985, c C‑29, as amended [the “Citizenship Act, 1985”]: Rogan, above, at para 21. Insofar as his prior acquisition of permanent resident status is concerned, his substantive rights are governed by the immigration legislation that was in force on August 8, 1995 when he obtained his permanent resident status, namely, the Immigration Act, RSC 1985, c I-2, as amended [the “Immigration Act, 1985”]: Rogan, above, at paras 23 and 247; Halindintwali, above, at para 25. Given that one of the relevant provisions of the latter legislation referred to the Criminal Code, it is also necessary to consider the version of that enactment that was in force at that time, namely, the Criminal Code, RSC, 1985, c C-46, as amended.
[33] For the purposes of this proceeding, the relevant substantive provision of the Citizenship Act, 1985 is paragraph 5(1)(c), which contemplated a grant of citizenship to any person who, among other things, “has been lawfully admitted to Canada for permanent residence”.
[34] Regarding the Immigration Act, 1985, there are three substantive provisions that are relevant in this proceeding. The first is subsection 9(3), which stated as follows:
9. (3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
9.(3) Toute personne doit répondre franchement aux questions de l’agent des visas et produire toutes les pièces qu’exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
[35] The two other provisions of that legislation that are relevant in this proceeding are paragraphs 19(1)(j) and (l), which stated the following:
Inadmissible classes
Catégories non admissibles
19(1) No person shall be granted admission who is a member of any of the following classes:
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission
j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant un crime de guerre ou un crime contre l'humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration.
(l) persons who are or were senior members of or senior officials in the service of a government that is or was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity within the meaning of subsection 7(3.76) of the Criminal Code, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest.
l) celles qui, à un rang élevé, font ou ont fait partie ou sont ou ont été au service d'un gouvernement qui, de l'avis du ministre, se livre ou s'est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou à des crimes de guerre ou contre l'humanité, au sens du paragraphe 7(3.76) du Code criminel, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national.
[36] With respect to the Criminal Code, 1985, the relevant provisions are subsections 7(3.76) and 7(3.77). The former defined the terms “conventional international law”, “crime against humanity” and “war crime”. Subsection 7(3.77) provided that, in the definitions of those three terms, the phrase “‘act or omission’ includes, for greater certainty, attempting or conspiring to commit, counselling any person to commit, aiding or abetting any person in the commission of, or being an accessory after the fact in relation to, an act or omission”. The full text of subsections 7(3.76) and (3.77) is set forth in Appendix 1 below.
[37] If a person’s Canadian citizenship is revoked, it becomes relevant to consider whether the person is inadmissible to Canada on any of the grounds set forth in the IRPA. For the purposes of this proceeding, there are two such grounds, namely those set forth in paragraphs 35(1)(a) and (b), respectively. Pursuant to those provisions, a permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for:
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
a) commettre, hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act;
b) occuper un poste de rang supérieur — au sens du règlement — au sein d’un gouvernement qui, de l’avis du ministre, se livre ou s’est livré au terrorisme, à des violations graves ou répétées des droits de la personne ou commet ou a commis un génocide, un crime contre l’humanité ou un crime de guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre l’humanité et les crimes de guerre;
[38] Pursuant to s. 33 of the IRPA, “[t]he facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred or are occurring or may occur”.
[39] With respect to the CAHWCA, the plaintiffs only seek a declaration in respect of section 6. Subsections 6(1), 6(1.1) and (2) state as follows:
OFFENCES OUTSIDE CANADA
INFRACTIONS COMMISES À L’ÉTRANGER
Genocide, etc., committed outside Canada
Génocide, crime contre l’humanité, etc., commis à l’étranger
6 (1) Every person who, either before or after the coming into force of this section, commits outside Canada
6 (1) Quiconque commet à l’étranger une des infractions ci-après, avant ou après l’entrée en vigueur du présent article, est coupable d’un acte criminel et peut être poursuivi pour cette infraction aux termes de l’article 8 :
(a) genocide,
a) génocide;
(b) a crime against humanity, or
b) crime contre l’humanité;
(c) a war crime,
c) crime de guerre.
is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
[BLANC]
Conspiracy, attempt, etc.
Punition de la tentative, de la complicité, etc.
(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.
(1.1) Est coupable d’un acte criminel quiconque complote ou tente de commettre une des infractions visées au paragraphe (1), est complice après le fait à son égard ou conseille de la commettre.
Punishment
Peines
(2) Every person who commits an offence under subsection (1) or (1.1)
(2) Quiconque commet une infraction visée aux paragraphes (1) ou (1.1) :
(a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and
a) est condamné à l’emprisonnement à perpétuité, si le meurtre intentionnel est à l’origine de l’infraction;
(b) is liable to imprisonment for life, in any other case
b) est passible de l’emprisonnement à perpétuité, dans les autres cas.
[40] For the purposes of the provisions quoted immediately above, definitions of the terms “crime against humanity”, “genocide” and “war crime” are set forth in subsection 6(3) of the CAHWCA, which is reproduced at Appendix 1 to these Reasons.
B. Mr. Kljajic’s procedural rights
[41] The parties to this proceeding submitted that Mr. Kljajic’s procedural rights are governed by the version of Canada’s citizenship legislation that was in force at the time the plaintiffs served and filed their Statement of Claim on August 29, 2017 (defined above as the Citizenship Act): Rogan, above, at para 17; Halindintwali, above, at para 24. [1]
[42] However, pursuant to subsection 19.1(2) of Bill C-6, a proceeding that was pending before this Court prior to the day on which subsection 3(2) came into force is to be dealt with and disposed of in accordance with the version of the Citizenship Act that was in force immediately before that day. Subsection 3(2) came into force on January 24, 2018. Accordingly, the version of the Citizenship Act that applies in this proceeding is the version that was in force on January 23, 2018. Nothing turns on this, as the language of sections 10.1, 10.2 and 10.5 of the Citizenship Act did not change between August 29, 2017 and January 23, 2018.
[43] As noted at paragraph 27 above, the first of the revised list of four declarations sought by the plaintiffs is a declaration under section 10.2 of the Citizenship Act. That provision states as follows:
Presumption
Présomption
10.2 For the purposes of subsections 10(1) and 10.1(1), a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship.
10.2 Pour l’application des paragraphes 10(1) et 10.1(1), a acquis la citoyenneté ou a été réintégrée dans celle-ci par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels la personne ayant acquis la citoyenneté ou ayant été réintégrée dans celle-ci après être devenue un résident permanent, au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés, par l’un de ces trois moyens.
[44] The second of the declarations now sought by the plaintiffs is under subsection 10.1(1), which states:
Revocation for fraud — declaration of Court
Révocation pour fraude — déclaration de la Cour
10.1 (1) Unless a person makes a request under paragraph 10(3.1)(b), the person’s citizenship or renunciation of citizenship may be revoked only if the Minister seeks a declaration, in an action that the Minister commences, that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances and the Court makes such a declaration
10.1 (1) Sauf si une personne fait une demande en vertu de l’alinéa 10(3.1)b), la citoyenneté de la personne ou sa répudiation ne peuvent être révoquées que si, à la demande du ministre, la Cour déclare, dans une action intentée par celui-ci, que l’acquisition, la conservation ou la répudiation de la citoyenneté de la personne ou sa réintégration dans celle-ci est intervenue par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels
[45] I pause to note that, pursuant to subsection 10.2(3), a declaration made under subsection 10.1(1) has the effect of revoking a person’s citizenship.
[46] Under subsection 10.1(4), for the purposes of subsection 10.1(1), the Minister need prove only that the person obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.
[47] The third and fourth declarations sought by the plaintiffs are under subsection 10.5(1), which states:
Inadmissibility
Interdiction de territoire
10.5 (1) On the request of the Minister of Public Safety and Emergency Preparedness, the Minister shall — in the originating document that commences an action under subsection 10.1(1) on the basis that the person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in section 34, 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(a) or (b) or (2)(a) or (b) of that Act — seek a declaration that the person who is the subject of the action is inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality under, respectively, subsection 34(1), paragraph 35(1)(a) or (b) or subsection 37(1) of the Immigration and Refugee Protection Act.
10.5 (1) À la requête du ministre de la Sécurité publique et de la Protection civile, le ministre demande, dans l’acte introductif d’instance de l’action intentée en vertu du paragraphe 10.1(1) au motif que l’acquisition, la conservation ou la répudiation de la citoyenneté de la personne ou sa réintégration dans celle-ci est intervenue par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels liée à l’un ou l’autre des faits énoncés aux articles 34, 35 ou 37 de la Loi sur l’immigration et la protection des réfugiés sauf ceux énoncés aux alinéas 36(1)a) ou b) ou (2)a) ou b) de cette loi, que la personne soit déclarée interdite de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour criminalité organisée au titre, respectivement, du paragraphe 34(1), des alinéas 35(1)a) ou b) ou du paragraphe 37(1) de cette loi
[48] I will add in passing that pursuant to subsection 10.5(3), a declaration that a person is inadmissible on one of the grounds referred to in subsection (1) is a removal order against that person under the IRPA. Such an order comes into force when it is made, without the necessity of holding or continuing an examination or an inadmissibility hearing under the IRPA.
V. Preliminary Issue
[49] During a pre-trial case management teleconference that took place on December 4, 2019, legal counsel to the parties had a disagreement regarding the manner in which the four witnesses who testified in this proceeding from the Canadian embassy in Belgrade should be sworn-in. In brief, counsel to Mr. Kljajic submitted that those witnesses should be sworn-in in accordance with Serbian law, whereas counsel to the plaintiffs maintained that the witnesses could and should be sworn-in pursuant to sections 52 and 53 of the Canada Evidence Act, RSC, 1985, c C-5 [the “CAE”].
[50] I agreed with counsel to the plaintiffs and undertook to explain why, in this decision.
[51] Sections 52 and 53 of the CAE state the following:
Application
Application
Application of this Part
Application
52 This Part extends to the following classes of persons:
52 La présente partie s’applique aux catégories suivantes de personnes :
(a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, pro-consuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents;
a) les fonctionnaires de l’un des services diplomatiques ou consulaires de Sa Majesté, lorsqu’ils exercent leurs fonctions dans tout pays étranger, y compris les ambassadeurs, envoyés, ministres, chargés d’affaires, conseillers, secrétaires, attachés, consuls généraux, consuls, vice-consuls, proconsuls, agents consulaires, consuls généraux suppléants, consuls suppléants, vice-consuls suppléants et agents consulaires suppléants;
(b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries;
b) les fonctionnaires des services diplomatiques, consulaires et représentatifs du Canada lorsqu’ils exercent leurs fonctions dans tout pays étranger ou dans toute partie du Commonwealth et territoires sous dépendance autre que le Canada, y compris, outre les fonctionnaires diplomatiques et consulaires mentionnés à l’alinéa a), les hauts commissaires, délégués permanents, hauts commissaires suppléants, délégués permanents suppléants, conseillers et secrétaires;
(c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada
c) les délégués commerciaux du gouvernement canadien et les délégués commerciaux adjoints du gouvernement canadien lorsqu’ils exercent leurs fonctions dans un pays étranger ou dans toute partie du Commonwealth et territoires sous dépendance autre que le Canada;
(d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
d) les fonctionnaires consulaires honoraires lorsqu’ils exercent leurs fonctions dans tout pays étranger ou dans toute partie du Commonwealth et territoires sous dépendance autre que le Canada;
(e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and
e) les fonctionnaires judiciaires d’un État étranger autorisés, à des fins internes, à recevoir les serments, les affidavits, les affirmations solennelles, les déclarations ou autres documents semblables;
(f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada.
f) les employés engagés sur place et désignés par le sous-ministre des Affaires étrangères ou toute autre personne autorisée par lui à procéder à une telle désignation lorsqu’ils exercent leurs fonctions dans tout pays étranger ou dans toute partie du Commonwealth et des territoires sous sa dépendance autre que le Canada.
Oaths and Solemn Affirmations
Serments et affirmations solennelles
Oaths taken abroad
Serments déférés à l’étranger
53 Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
53 Les serments, affidavits, affirmations solennelles ou déclarations déférés, recueillis ou reçus à l’étranger par toute personne mentionnée à l’article 52 sont aussi valides et efficaces et possèdent la même vigueur et le même effet, à toutes fins, que s’ils avaient été déférés, recueillis ou reçus au Canada par une personne autorisée à y déférer, recueillir ou recevoir les serments, affidavits, affirmations solennelles ou déclarations qui sont valides ou efficaces en vertu de la présente loi.
[52] On a plain reading, section 53 of the CAE provides authority for oaths and solemn affirmations to be administered outside Canada by any person mentioned in section 52, while performing their functions in any foreign country. When an oath or a solemn affirmation is administered by such a person in this manner, it is as valid and effectual, and is of like force and effect to all intents and purposes, as if it had been duly and properly administered in Canada.
[53] In this proceeding, the person who administered the oaths of the witnesses who testified from Belgrade was Mr. Francois Lavertue. He holds the title of Consul in Canada’s embassy in Belgrade. He performed the oaths in the course of performing his functions at the embassy. Accordingly, he is a person described in section 52, and the oaths he administered were entirely valid and effectual, as described above. I pause to note that those oaths were administered in person, and witnessed by video-conference by everyone who was present in the Ottawa courtroom where the trial took place.
[54] Out of an abundance of caution, the witnesses mentioned above were also sworn-in by video-conference by the Registrar who was present in the courtroom in Ottawa.
[55] Pursuant to Rule 32 of the Federal Courts Rules, SOR/98-106, the Court may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication. When I verbally agreed to the parties’ requests, on consent, to have some of their witnesses testify from Belgrade, I implicitly gave such an order. That order was also implicitly contemplated by a verbal Direction, dated November 21, 2019, that I issued instructing counsel to provide submissions regarding the applicable law and related requirements for administering the oaths to the witnesses who would be testifying by video-conference from the Canadian embassy in Belgrade.
[56] In response to that Direction, counsel to Mr. Kljajic maintained that Serbian law applied to the administration of oaths in Belgrade. However, no evidence or information was provided regarding the content and requirements of that law.
[57] Quoting this Court’s decision in Farzam v Canada (Minister of Citizenship and Immigration),