Canada (Citizenship and Immigration) v. Rubuga

Canada (Citizenship and Immigration) v. Rubuga
Court (s) Database
Federal Court Decisions
Date
2015-09-14
Neutral citation
2015 FC 1073
File numbers
T-1839-14
Notes
A correction was made on Febuary 5, 2016
Digest
Decision Content
Date: 20150914
Docket: T-1839-14
Citation: 2015 FC 1073
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, the 14th day of September 2015
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
And
MAURICE RUBUGA
Defendant
JUDGMENT AND REASONS
[1] This is a motion for default judgment in respect of a referral initiated by the plaintiff, the Minister of Citizenship and Immigration [the Minister], pursuant to paragraph 18(1)(b) of the Citizenship Act, RSC (1985), c. C-29 [the CA]. In this motion, the Minister is seeking a declaration that the defendant obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Following the hearing of this motion, the CA was subject to significant amendments. As discussed below, pursuant to these amendments, an order allowing the Minister’s motion for default judgment in this case will have the effect of revoking the defendant’s citizenship.
I. Legislative context A. New provisions of the Citizenship Act that apply in this case [2] The relevant former provisions of the CA (in force until May 28, 2015, inclusively) under which this motion was first brought, listed a six-step process for the revocation of an individual’s citizenship in a case such as this one.
[3] Under subsections 10(1) and 18(1) of the former CA, now repealed, the Minister, having reason to believe that an individual obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, was required to first notify this individual of his intention to recommend that the Governor in Council revoke the individual’s citizenship.
[4] If the individual wished to oppose this procedure, he or she could request that the issue be referred to the Federal Court.
[5] When an individual made such a request, it was the Minister’s responsibility to initiate a proceeding before the Federal Court to obtain a declaration that the individual obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[6] Once presented with the case, the Federal Court would hear the parties and issue the declaration requested if it considered the allegations to be founded. As noted in Canada (Minister of Citizenship and Immigration) v Obodzinsky, 2002 FCA 518 at para 15, [2003] 2 FCJ 657 [Obodzinsky], a declaration issued in this context did not have the effect of revoking the individual’s citizenship. Rather, it was a factual finding that the citizenship had been obtained by false representation or fraud or by knowingly concealing material circumstances.
[7] If the Minister wished to complete the last step of the procedure to revoke the individual’s citizenship, he could submit a report to the Governor in Council based on the declaration issued by the Federal Court, when applicable, pursuant to former subsection 10(1) of the CA (Obodzinsky, above, at para 15).
[8] Once the Minister’s report was received, the Governor in Council was authorized to revoke the individual’s citizenship if it was convinced that it had been obtained by false representation or fraud or by knowingly concealing material circumstances.
[9] This process was shortened considerably by amendments to the CA that came into force on June 11, 2015, which created two distinct revocation procedures.
[10] In simpler cases, if the Minister considers that an individual obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, he could revoke the citizenship under the new section 10 of the CA. The Minister would, however, have to provide the individual with a written notice of his intention to proceed with the revocation and give the individual the opportunity to make written representations. Moreover, under subsection 10(4) of the CA, “[a] hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required.” To date, there is no regulatory provision under the CA that prescribes such factors. A decision to revoke under section 10 of the CA may be reviewed by the Federal Court, with leave of the Court (subs 22.1(1) of the CA).
[11] The more serious cases are governed by the new section 10.1 of the CA. If the Minister has reasonable grounds to believe that an individual’s citizenship was obtained 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, SC 2001, c 27 [IRPA], other than a fact that is also described in paragraph 36(1)(a) or (b) or 36(2)(a) or (b) of the IRPA, under subsection 10.1(1) of the CA the Minister must obtain a declaration from the Federal court to this effect.
[12] A declaration issued by the Federal Court in accordance with new subsection 10.1(1) of the CA has the effect of revoking the citizenship of the person in question (para 10.1(3)(a) of the CA).
[13] Under the transitional provisions in the Strengthening Canadian Citizenship Act, RS, c C‑29 (act making the described amendments to the CA), the new procedure for revocation provided at subsection 10.1(1) applies to cases of revocation involving facts described in sections 34, 35 and 37 of the IRPA (other than a fact also described in paragraph 36(1)(a) or (b) or 36(2)(a) or (b) of the IRPA) which was before the Federal Court at the time the new provision came into force, on June 11, 2015. On this, subsection 40(2) of the Strengthening Canadian Citizenship Act states the following:
40. (2) Any proceeding with respect to allegations that a 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, that is pending before the Federal Court immediately before the day on which section 8 [of the Strengthening Canadian Citizenship Act] comes into force, as a result of a referral
40. (2) Les instances en cours relatives à des allégations portant que l’acquisition, la conservation ou la répudiation de la citoyenneté d’une 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 — concernant des faits visés à l’un des articles 34, 35 et 37 de la Loi sur l’immigration et la protection des réfugiés, autre qu’un fait également visé à l’un des alinéas 36(1)a) et b) et (2)a) et b) de cette loi —, à l’entrée en vigueur de l’article 8 [de la Loi renforçant la citoyenneté canadienne],
under section 18 of the Citizenship Act as that section 18 read immediately before that day, is to be continued as a proceeding under subsection 10.1(1) of the Citizenship Act, as enacted by section 8 [of the Strengthening Canadian Citizenship Act].
devant la Cour fédérale à la suite d’un renvoi visé à l’article 18 de la Loi sur la citoyenneté, dans sa version antérieure à cette entrée en vigueur, sont continuées sous le régime du paragraphe 10.1(1) de cette loi, édicté par l’article 8 [de la Loi renforçant la citoyenneté canadienne].
[Emphasis added]
B. Related provisions that apply in this case [14] Sections 34, 35 and 37 of the IRPA, above, address inadmissibility on grounds of security, violating human or international rights or organized crime, as defined by the IRPA.
[15] Subsection 35(1) of the IRPA is of particular relevance in this case:
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants :
(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;
…
…
[16] Committing genocide, a crime against humanity or war crime outside Canada is considered a criminal offence under subsection 6(1) of the Crimes Against Humanity and War Crimes Act, SC 2000, c 24.
[17] Subsection 6(3) of that act defines the terms “crime against humanity”, “war crime,” and “genocide” as follows:
“crime against humanity”
« crime contre l’humanité »
“crime against humanity” means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
« crime contre l’humanité » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait — acte ou omission — inhumain, d’une part, commis contre une population civile ou un groupe identifiable de personnes et, d’autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l’humanité selon le droit international coutumier ou le droit international conventionnel ou en raison de son caractère criminel d’après les principes généraux de droit reconnus par l’ensemble des nations, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
“war crime”
« crime de guerre »
“war crime” means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
« crime de guerre » Fait — acte ou omission — commis au cours d’un conflit armé et constituant, au moment et au lieu de la perpétration, un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables à ces conflits, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
“genocide”
« génocide »
“genocide” means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
« génocide » Fait — acte ou omission — commis dans l’intention de détruire, en tout ou en partie, un groupe identifiable de personnes et constituant, au moment et au lieu de la perpétration, un génocide selon le droit international coutumier ou le droit international conventionnel, ou en raison de son caractère criminel d’après les principes généraux de droit reconnus par l’ensemble des nations, qu’il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
[18] Moreover, these offences include conspiracy, attempts to commit, being an accessory after the fact or counselling (subs 6(1.1) of the Crimes Against Humanity and War Crimes Act).
C. Applicable provisions at the time the defendant submitted his refugee claim and application for permanent resident status [19] Committing a war crime or crime against humanity constituted a grounds for exclusion as a refugee as defined under the United Nations Convention Relating to the Status of Refugees [the Convention] and constituted a grounds for inadmissibility under the Immigration Act, RSC 1985, c I-2 at the time the defendant submitted his refugee claim and application for permanent resident status, on July 2, 1998, and December 13, 1999, respectively.
[20] More specifically, to be recognized as a Convention refugee, the defendant had to show that he met the definition of “Convention refugee.” When the defendant submitted his refugee claim on July 2, 1998, this definition was provided under subsection 2(1) of the Immigration Act:
“Convention refugee” means any person who
« réfugié au sens de la Convention » Toute personne :
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
a) qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(i) is outside the country of the person’s nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of that country, or
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays;
(ii) not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
(ii) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
(b) has not ceased to be a Convention refugee by virtue of subsection (2),
b) n’a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act.
Sont exclues de la présente définition les personnes soustraites à l’application de la Convention par les sections E ou F de l’article premier de celle-ci dont le texte est reproduit à l’annexe de la présente loi.
[21] Among other things, the defendant had to show that he was not excluded as a refugee under clause 1F(a) of the Convention, which states the following:
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
a) qu’elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l’humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes;
[22] Paragraph 19(1)(j) of the Immigration Act, in force when the defendant submitted his application for permanent resident status on December 13, 1999, and which is the precursor to section 35 of the IRPA, provided that persons were to be excluded in cases where there were reasonable grounds to believe they had committed a war crime or crime against humanity outside Canada:
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.
[23] Subsection 7(3.76) of the Criminal Code, RSC 1985, c C-46, in force at the time, defined “crime against humanity” and “war crime” as follows:
“crime against humanity”
« crime contre l’humanité »
“crime against humanity” means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations.
« crime contre l’humanité » Assassinat, extermination, réduction en esclavage, déportation, persécution ou autre fait – acte ou omission – inhumain d’une part, commis contre une population civile ou un groupe identifiable de personnes – qu’il ait ou non constitué une transgression du droit en vigueur à l’époque et au lieu de la perpétration – et d’autre part, soit constituant, à l’époque et dans ce lieu, une transgression du droit international coutumier ou conventionnel, soit ayant un caractère criminel d’après les principes généraux de droit reconnus par l’ensemble des nations.
“war crime”
« crime de guerre »
“war crime” means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts.
« crime de guerre » Fait – acte ou omission – commis au cours d’un conflit armé international – qu’il ait ou non constitué une transgression du droit en vigueur à l’époque et au lieu de la perpétration – et constituant, à l’époque et dans ce lieu, une transgression du droit international coutumier ou conventionnel applicable à de tels conflits.
[24] These definitions included 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, pursuant to subsection 7(3.77) of the Criminal Code.
[25] A copy of all the above-noted legislative provisions is attached to these reasons.
II. Context of the motion [26] The defendant, a Rwandan citizen from the Hutu ethnic group, claimed refugee status on July 2, 1998. The Refugee Protection Division [RPD] granted this status on October 13, 1999. On December 13, 1999, the defendant applied for permanent residence, and he became a permanent resident on May 31, 2001. The defendant then applied for citizenship and became a Canadian citizen on September 13, 2004.
[27] On March 28, 2014, the Minister sent a notice to the defendant informing him of his intention to recommend that the Governor in Council revoke his citizenship, in accordance with sections 10 and 18 of the CA, now repealed.
[28] On April 10, 2014, as was his right, the defendant requested that his case be referred to this Court. The Minister then initiated this proceeding against the defendant on August 26, 2014, serving the solicitor who was representing the defendant at the time, and leaving a copy of his statement of claim at the defendant’s residence with his wife.
[29] In his statement of claim, the Minister alleges that the defendant made false representations in his refugee claim and his application for permanent resident status, with regard to his identity and origins, concealing the fact that he was a member of the Rwandan armed forces [FAR]. The Minister also alleges that the defendant participated in the genocide that occurred in Rwanda between April and July 1994, during which hundreds of thousands of Rwandans from the Tutsi ethnic group and moderate Rwandans from the Hutu ethnic group were massacred. The Minister alleges that if the defendant had told the truth about his past, he would not have obtained refugee status or permanent resident status (and therefore he would never have been considered eligible to become a Canadian citizen), because he would have been deemed ineligible under paragraph 19(1)(j) of the Immigration Act (now section 35 of the IRPA).
[30] Although he asked for this case to be referred to this Court, the defendant was not present at the hearing, even though the Minister’s statement of claim was served on the solicitor representing him at the time.
[31] On February 16, the Minister filed a motion for default judgment under subsection 210(1) of the Federal Courts Rules, SOR/98-106 [the Rules], providing a significant amount of evidence by affidavit. A copy of this motion for default judgment was served at the home of the defendant, on his wife.
[32] The Minister’s motion was heard April 14, 2015, and I reserved judgment.
[33] On June 1, 2015, counsel for the Minister wrote to the Court, taking the position that the new provisions of section 10.1 of the CA applied in the present case, since the statement of claim and notice of motion submitted by the Minister already included allegations that the defendant made false representations and knowingly concealed material circumstances with respect to a fact described in section 35 of the IRPA.
[34] I agree with the Minister on this and find that the relevant provisions of section 10.1 of the CA, recently in force, apply to the present case in accordance with subsection 40(2) of the Strengthening Canadian Citizenship Act.
[35] I also find that, for the reasons set out below, the Minister established on a balance of probabilities that the defendant obtained his Canadian citizenship by false representation and by knowingly concealing material circumstances set out in section 35 of the IRPA, such that the declaration being sought should be issued. Pursuant to subsection 10.1(3) of the CA, this declaration has the effect of revoking the defendant’s Canadian citizenship.
III. Default proceeding [36] The pleadings entered for the present motion were not served on the defendant personally and he did not attend the hearing of his case. Before considering the evidence submitted by the plaintiff, the Court must determine whether the defendant was served in due form and whether it is appropriate to continue in his absence.
[37] Rule 127 governs the service of originating documents and states the following:
Service of originating documents
Signification de l’acte introductif d’instance
127. (1) An originating document that has been issued, other than in an appeal from the Federal Court to the Federal Court of Appeal or an ex parte application under rule 327, shall be served personally.
127. (1) L’acte introductif d’instance qui a été délivré est signifié à personne sauf dans le cas de l’appel d’une décision de la Cour fédérale devant la Cour d’appel fédérale et dans le cas d’une demande visée à la règle 327 et présentée ex parte.
(2) A party who has already participated in the proceeding need not be personally served.
(2) Il n’est pas nécessaire de signifier ainsi l’acte introductif d’instance à une partie qui a déjà participé à l’instance.
[Emphasis added]
[38] The terms governing personal service on an individual are set out in rule 128 as follows:
Personal service on individual
Signification à une personne physique
128. (1) Personal service of a document on an individual, other than an individual under a legal disability, is effected
128. (1) La signification à personne d’un document à une personne physique, autre qu’une personne qui n’a pas la capacité d’ester en justice, s’effectue selon l’un des modes suivants :
(a) by leaving the document with the individual;
a) par remise du document à la personne;
(b) by leaving the document with an adult person residing at the individual's place of residence, and mailing a copy of the document to the individual at that address;
b) par remise du document à une personne majeure qui réside au domicile de la personne et par envoi par la poste d’une copie du document à cette dernière à la même adresse;
…
…
(d) by mailing the document to the individual's last known address, accompanied by an acknowledgement of receipt form in Form 128, if the individual signs and returns the acknowledgement of receipt card or signs a post office receipt;
d) par envoi par la poste du document à la dernière adresse connue de la personne, accompagnée d’une carte d’accusé de réception selon la formule 128, si la personne signe et retourne la carte d’accusé de réception;
(e) by mailing the document by registered mail to the individual's last known address, if the individual signs a post office receipt; or
e) par envoi par courrier recommandé du document à la dernière adresse connue de la personne si la personne signe le récépissé du bureau de poste;
(f) in any other manner provided by an Act of Parliament applicable to the proceeding.
f) le mode prévu par la loi fédérale applicable à l’instance.
[Emphasis added]
[39] Pursuant to rule 134, service on the solicitor of a party is the equivalent of service on the individual in question:
Acceptance of service by solicitor
Acceptation de la signification par l’avocat
134. Personal service of a document on a party may be effected by the acceptance of service by the party's solicitor.
134. La signification à personne d’un document à une partie peut être effectuée auprès de son avocat si celui-ci en accepte la signification.
[40] The plaintiff’s statement of claim was served on the solicitor for the defendant on August 28, 2014. However, he did not complete an acceptance of service as required under rule 146(1)(d), which states the following:
Proof of service
Preuve de signification
146. (1) Service of a document is proven by
146. (1) La preuve de la signification d’un document est établie :
…
…
(d) if the service is effected under rule 134, an acceptance of service that is signed and dated by the party’s solicitor.
d) si le document a été signifié aux termes de la règle 134, par une acceptation de signification datée et signée par l’avocat.
[41] Additionally, in a letter dated October 10, 2014, the solicitor for the defendant notified the Court that he had ceased representing the defendant. Therefore, this solicitor never appeared before the Federal Court.
[42] As noted above, in addition to having served this solicitor, the Minister sent a copy of his statement of claim to the defendant’s home through a messenger service. The defendant’s wife acknowledged receipt of the statement of claim. However, no additional copy was sent to the defendant’s home by mail, contrary to the requirements under paragraph 128(1)(b) of the Rules.
[43] The subsequent pleadings, namely the motion for default judgment and the motion for confidentiality, were served on February 13, 2015, at the defendant’s home, where the defendant’s wife acknowledged receipt.
A. Did the defendant “already participate in the proceeding” within the meaning of rule 127(2)? [44] Pursuant to former section 18 of the CA, only the defendant could request that his case be referred to the Federal Court, and this was to be done within thirty days following receipt of the Minister’s notice. In the absence of such a request, the Minister could proceed with making the report for the Governor in Council. Section 18 of the CA provided the following:
Notice to person in respect of revocation
Avis préalable à l’annulation
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
18. (1) Le ministre ne peut procéder à l’établissement du rapport mentionné à l’article 10 sans avoir auparavant avisé l’intéressé de son intention en ce sens et sans que l’une ou l’autre des conditions suivantes ne se soit réalisée :
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
a) l’intéressé n’a pas, dans les trente jours suivant la date d’expédition de l’avis, demandé le renvoi de l’affaire devant la Cour;
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
b) la Cour, saisie de l’affaire, a décidé qu’il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
Nature of notice
Nature de l’avis
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a l’intéressé, dans les trente jours suivant sa date d’expédition, de demander au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l’intéressé.
[Emphasis added]
[45] Clearly, the defendant was aware that the procedure to revoke his citizenship had been initiated by the Minister before the Minister served his statement of claim. He had already taken positive action in the procedure by exercising his right to request that the case be referred to the Federal Court. He also retained the services of a solicitor, who acknowledged receipt of the statement of claim in his name. I find that the defendant had “already participated in the proceeding” within the meaning of subsection 127(2) of the Rules, and that the plaintiff was therefore not required to serve the statement of claim in person.
B. Was the service of the statement of claim on the defendant’s wife sufficient for the purposes of the case? [46] If this interpretation of rule 127(2) is inaccurate, the Court is still authorized to validate the service as it took place pursuant to rule 147, “if it is satisfied that the document came to the notice of the person to be served or that it would have come to that person’s notice except for the person’s avoidance of service.”
[47] The plaintiff served a copy of the statement of claim on the defendant’s wife, who resided at the defendant’s home, but did not send an additional copy of the statement of claim to this address by mail.
[48] Considering the circumstances, I am convinced that the document came to the defendant’s notice or it would have come to his notice had he not avoided service. He was clearly aware that the procedure to revoke his citizenship had been initiated before the statement of claim was filed. Moreover, sending an additional copy of the statement of claim by mail, as provided under paragraph 128(1)(b) of the Rules, is more a requirement as to form than of substance. I therefore validate the service as it was completed, pursuant to rule 147.
C. It is fair to proceed with this motion for default judgment under rule 211? [49] If the interpretation of rules 127(2) and 147, set out above, is inaccurate, the Court is still authorized to issue a substitutional service order. When the personal service of a document “cannot practicably be effected”, subsection 136(1) of the Rules confers on the Court the power to order substitutional service:
Substituted service or dispensing with service
Ordonnance de signification substitutive
136. (1) Where service of a document that is required to be served personally cannot practicably be effected, the Court may order substitutional service or dispense with service.
136. (1) Si la signification à personne d’un document est en pratique impossible, la Cour peut rendre une ordonnance autorisant la signification substitutive ou dispensant de la signification.
[50] In such circumstances, rule 211 provides the following:
Service pursuant to order for substitutional service
Signification substitutive en vertu d’une ordonnance
211. Judgment shall not be given against a defendant who is in default where service of the statement of claim was effected pursuant to an order for substitutional service, unless the Court is satisfied that it is just to do so having regard to all the circumstances.
211. Lorsque la signification de la déclaration a été faite en vertu d’une ordonnance de signification substitutive, aucun jugement ne peut être rendu contre le défendeur en défaut à moins que la Cour ne soit convaincue qu’il est équitable de le faire dans les circonstances.
[51] In this case, if my interpretation of rules 127(2) and 147 is inaccurate, I find that it is appropriate to dispense the plaintiff from his obligation to serve the statement of claim on the defendant in person. I also find that it is fair to render judgment against the defendant because he was clearly aware of the proceeding before the declaration was submitted. If it were otherwise, it would be all too easy for a defendant in a similar situation to avoid having his citizenship revoked by making himself unavailable for the purposes of the service of the pleadings in the case.
IV. The evidence [52] The Minister submitted the affidavits of Jasmina Stebelsky, Corporal Yves Gravelle, Médard Nduwamungu, Virginie Désilets, François-Pierre Déry, Scott Strauss, Isabelle Nicolas, Svetlana Kritenko and a witness whose identity shall remain confidential and whom I shall designate as “ND-05.” Considering the possible repercussions for this witness and certain other witnesses mentioned in the affidavits of Corporal Gravelle and Mr. Nduwamungu, on March 12, 2015, I ordered that the identity of all these individuals be declared confidential.
[53] Ms. Stebelsky is an immigration officer and attached to her affidavit are the refugee claim and applications for permanent resident status and for Canadian citizenship submitted by the defendant [the immigration applications].
[54] Before the RPD, the defendant alleged the following:
• His name is Maurice Rubuga;
• He was born on September 3, 1966, in Mukingo, Ruhengeri, Rwanda;
• His father’s name is Munyarubuga, his mother’s name is Bavugabwose and his brothers are called Serubingo, Munyempanzi, Rutanganya, Nkundakozera, Nduwayezu, Sebahigi and Nkurunziza;
• From 1982 to 1988, he studied at Groupe scolaire St-André in Kigali;
• He earned a bachelor’s degree from the National University of Rwanda [NUR] in 1990;
• From 1990 to 1993, he worked as a teacher in Rwankeri, in the Ruhengeri prefecture in Rwanda;
• From 1993 to April 1994, he was the secretary for the “Birunga maize Project” in the Nkuli commune in Rwanda;
• From July 1994 to September 1996, he was at the Katale refugee camp in Zaire, then from September 1996 to April 1998, he returned to Mukingo in Rwanda;
• His wife, Agnès Mahoro, was allegedly killed in 1998 in Rwanda by members of the Rwandan Patriotic Front [RPF];
• He left Rwanda on April 25, 1998, because he was wanted and being persecuted by members of the RPF;
• He was never a member of the Rwandan army; and
• He never participated in the commission of a crime against humanity.
[55] In his application for permanent residence presented in 1999, the defendant reiterated most of these points. He provided the same information in support of his application for Canadian citizenship.
[56] In her affidavit, Ms. Stebelsky stated that if the defendant had told the truth regarding his identity and his origins in his refugee claim and application for permanent resident status, a more thorough investigation would have been conducted to determine whether he was eligible since at the time, Canadian authorities wanted to prevent Canada from becoming a haven for individuals who had committed war crimes or had violated human rights in Rwanda. She also stated that if the information that the Royal Canadian Mounted Police [RCMP] later discovered had been known at the time, the defendant would probably have been excluded because of his participation in human rights violations and would therefore not have been eligible for refugee status. The rejection of his refugee claim would have made him ineligible for permanent resident status, which would then have prevented him from obtaining his Canadian citizenship.
[57] One of the conditions for obtaining Canadian citizenship is obtaining (and retaining) permanent resident status for a period determined by the CA.
[58] Corporal Gravelle and Mr. Nduwamungu [the investigators] are investigators employed by the RCMP and the Crimes Against Humanity and War Crimes Section of the Department of Justice, respectively. Their affidavits describe the investigations involving the defendant. With these affidavits, they enclosed many documents discovered during the investigation as well as affidavits signed by witnesses they met with during their investigation.
[59] Each of the investigators also reported information obtained during interviews with witnesses who did not sign an affidavit. The transcripts of many of these meetings are enclosed with their affidavits. The plaintiff provided recordings of these interviews to the Court.
[60] Svetlana Kritenko, a Department of Justice employee, provided a summary in her affidavit of the resources that would be required to send two counsel from the Crimes Against Humanity and War Crimes Section of the Department of Justice to Rwanda to obtain sworn statements from these witnesses. Ms. Kritenko did not, however, explain why these witnesses did not sign an affidavit at the time they were questioned by the investigators.
[61] Mr. Nduwamungu also included a series of documents with his affidavit that were submitted to the International Criminal Tribunal for Rwanda [ICTR].
[62] The information the investigators collected directly or that was obtained through the affidavits enclosed with Mr. Nduwamungu’s affidavit establish the following with regard to Maurice Rubuga:
• No document confirms that a person named “Maurice Rubuga”, born in Mukingo, in the Ruhengeri prefecture in Rwanda, attended the Groupe scolaire St-André in Kigali or the NUR;
• No document confirms that a person named “Maurice Rubuga” was employed as a teacher from 1990 to 1993 or contributed to the Rwandan Social Security Board [RSSB] during this period; and
• Many documents indicate that a person named “Fulgence Munyengango” was born in 1965 in the Ruhengeri prefecture to a father called “Munyarubuga” and a mother called “Bavugabwose”. These are the same names the defendant provided in support of his immigration applications.
[63] Many individuals questioned by Corporal Gravelle indicated that “Fulgence Munyengango” changed his name to “Gervais Ndahayo” after he failed the high school entrance exam. These witnesses also indicated that changing one’s name was a common technique used by young Rwandans so they could take the entrance exam again the following year, using a pseudonym.
[64] The investigators and other informants who gave sworn statements provided evidence that establishes the following:
• Gervais Ndahayo attended the Groupe scolaire Saint-André in Kigali, claiming to have been born in 1966 rather than