Canada v. Obodzinsky

Canada v. Obodzinsky
Court (s) Database
Federal Court Decisions
Date
2003-09-19
Neutral citation
2003 FC 1080
File numbers
T-166-00
Decision Content
••••••••
Date: 20030919
Docket: T-166-00
Citation: 2003 FC 1080
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
AND:
WALTER OBODZINSKY
(Alias Wlodzimierz or Volodya Obodzinsky)
Defendant
REASONS FOR REFERENCE
LEMIEUX J.
INTRODUCTION
[1] This is a reference, requested August 23, 1999, by Walter Obodzinsky, who was born in Byelorussia and has been a Canadian citizen since 1955.
[2] The reference was requested by the defendant pursuant to paragraph 18(1)(a) of the Citizenship Act, 1976 (the Act), as it was written prior to its amendment in 2001, following his receipt of a notice (the notice) under subsection 18(1) of the Act issued July 29, 1999, by the Minister of Citizenship and Immigration (the Minister) indicating her intention under section 10 of the Act to report to the Governor in Council that Mr. Obodzinsky was admitted to Canada with landing in permanent residence and acquired Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[3] Sections 10 and 18 of the Act read as follows:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée :
a) soit perd sa citoyenneté ;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation of fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée :
a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour ;
b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
(2) 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.(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. [Emphasis added]
(3) La décision de la cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel. [je souligne]
[4] The case law is clear that the nature of the judge's function on a reference under the Act is "to collect evidence of facts surrounding the [defendant's] acquisition of citizenship, so as to determine whether it was obtained by fraudulent means" (see Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2002] F.C.A. 518, paragraph 15).
[5] In Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.), Mr. Justice Linden writes at paragraph 8 that "[A]ll that was decided by the trial judge was the fact that Mr. Luitjens obtained his Canadian citizenship by false representations . . . it is merely one stage of a proceeding which may or may not result in a final revocation of citizenship and deportation or extradition."
[6] To the same effect is the decision of Mr. Justice Strayer in Canada (Minister of Citizenship and Immigration) v. Fast, [2001] F.C.A. 373, where he states that the reference procedure under section 18 of the Act "involves only findings of fact and no decisions that determine rights" since under the Act, prior to its amendment, the trier of fact had no power to revoke an individual's citizenship.
[7] It is also settled law that it is the Minister who has the burden of establishing that a defendant acquired his citizenship by false representation or fraud or by knowingly concealing material circumstances, and that the sufficiency of the Minister's evidence is judged on the balance of probabilities (Minister of Citizenship and Immigration v. Bogutin, [1998] F.C.J. No. 211).
[8] To determine a fact on the balance of probabilities means that the trier of fact decides that the proof is such that the court can find that it is more probable that the onus has been met. In other words, the judge must determine that the existence of a disputed fact is more probable than its non existence. See The Law of Evidence in Canada, Sopinka et al., 2nd ed. (Butterworths, 1999), p. 155.
[9] As Jean-Claude Royer explains in his book, La preuve civile (Éditions Yvon Blais, 1987), at paragraph 166, in a civil law case the court decides on the balance of probabilities: "[translation] ... it is through the preponderance of evidence that cases must be decided... in light of what is indicated by the most probable facts. To fulfill his duty to persuade, a litigant must establish sufficient evidence to make the act or juridical fact in dispute not only possible but probable."
BACKGROUND
1. The notice
[10] The following are the reasons given by Ms. Robillard, the Minister, in the notice she sent to the defendant:
[translation]
You were admitted to Canada as a landed immigrant with permanent residence and acquired Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, as you failed to disclose to the Canadian authorities responsible for the selection of applicants your activities during the Second World War, including:
• Your collaboration with the German occupation authorities of what is now Byelorussia (or Belarus);
• Your links with the local auxiliary police force organized by the Germans in the district of Mir, which became the Schutzmannshaft, and which was involved in the deportation and massacre of Jewish and non-Jewish civilians in the district of Mir;
• Your links with an anti-partisan unit assembled in the town of Baranovicze in 1943, which was involved in the deportation and massacre of civilians in what is now Byelorussia;
• Your links with the 30.Waffen-Grenadier-Division der SS;
or
• Various other activities in which you were involved that made you inadmissible and prohibited your entry to Canada. [Emphasis added]
2. The statement of claim
[11] Following Walter Obodzinsky's request that the Minister refer the case to the Court, the Minister took action by means of a statement of claim against him dated February 1, 2000.
[12] According to the statement of claim, the defendant was born on May 7, 1919, in the village of Turez in the district of Mir, a region that between 1921 and 1939 was part of Poland before coming under the control of the Union of Soviet Socialist Republics (USSR) in 1939 as a result of the Molotov-Ribbentrop Agreement. This territory was subsequently invaded on June 22, 1941 by the German troops, who, after a blitzkrieg, occupied it by the end of June 1941, an occupation that ended in mid-1944 when the Red Army drove out the occupiers.
[13] The Minister claims that during the summer of 1941, the defendant voluntarily joined, as a police officer, the auxiliary police unit formed in the district of Mir by the German occupation military administration and that he continued to perform police duties when the Schutzmannschaften of the district of Mir, units stationed in the villages, were established during the fall of 1941 by the German civilian occupation that had taken over from the military.
[14] Heinrich Himmler, supreme commander of the SS (Schutztaffel) and the German police, was largely given responsibility for maintaining security and order in the newly occupied territories under German occupation civilian jurisdiction. It was Himmler who, according to the statement of claim, ordered the formation of auxiliary police units composed of volunteers from the local population, subordinated to and integrated with the SS and German police structure.
[15] The role of the Schutzmannschaften was to support the German authorities in the occupied territories: (1) to provide order, security and control, (2) to fight the partisans, and (3) to implement the German occupation policies such as the exploitation of natural and human resources and the systematic extermination of the political and racial enemies of the Reich, including in particular the Communists and the Jews.
[16] The Schutzmannschaften were commanded and supervised by a small number of German police officers (the Gendarmerie).
[17] The statement of claim alleges that in 1941 the defendant was stationed in the villages of Turez and Jeremichi, and that he was transferred to the Schutzmannschaft station in the town of Mir in August 1942, where he continued to perform police duties.
[18] Paragraph 21 of the statement of claim is important, since it describes the role at the time of the local police in the district of Mir in the participation in certain atrocities, including the following:
[translation]
21. The local police in the district of Mir, at the time the defendant was one, participated in the commission of atrocities, including in particular the ones hereinafter cited:
(a) As soon as the auxiliary police unit in the Mir district was established, during the summer of 1941, the local police participated in the exploitation, mistreatment, harassment and humiliation of the Jewish population and the seizure of their property;
(b) Later, the local police in the Mir district participated in the execution of Jewish and non-Jewish civilians. More particularly, on October 28, 1941, at Turez, some local police ordered about a dozen Jews to dig a large ditch within the Jewish cemetery. The other Jews in Turez were ordered to assemble in the village, at the marketplace. About fifty-seven Jewish men and women were selected and escorted to the cemetery, where they were ordered to undress. After being separated into three groups, they were lined up at the edge of the ditch and shot by the local police;
(c) On November 4, 1941, some Germans and local police forced the Jews of Jeremitsche, who numbered about one hundred, to go to a ditch dug at the far end of the village, to take off their clothes and to lie down in the ditch. They were then shot by the local police and some Germans, all of whom were lined up along the side of the ditch;
(d) Later that day, the rest of the Jewish population of Turez, comprising between 500 and 600 men, women and children, were ordered to assemble in the main square. About one hundred Jews were picked out for deportation to a labour camp, a sawmill in the village of Nowy Swierschen. The other Jews were shot by some Germans and some local police from the district of Mir, after they had been ordered to lie down in a ditch excavated in the village's Jewish cemetery;
(e) On November 9, 1941, about 1,500 Jewish inhabitants of the town of Mir were executed by the Germans and the local police. All of the auxiliary police unit stations in the Mir district participated in this huge massacre;
(f) The Jews of Mir who survived this massacre were confined to living in a limited part of the town. In May 1942, they were transferred to the ghetto created in the Mirsky chateau situated in the town of Mir;
(g) On August 13, 1942, the Germans, aided by members of the Schutzmannschaft of the district of Mir, killed all of the Jews living in the ghetto in the Mirsky chateau, about 560 persons;
(h) However, some Jews had managed to escape from the chateau several days before the ghetto's liquidation. In the following weeks, the Schutzmannschaft members in the Mir district patrolled the neighbouring region looking for Jews who had escaped from the chateau. About sixty-five Jews were captured and executed;
[19] According to the Minister, the auxiliary police in the Mir district were involved in the fight against the partisans. The statement of claim mentions a raid on Lyadki on January 13, 1943, in which an execution squad went from house to house, guarded by the auxiliary police, and that on March 7, 1943, a number of villages were burned down and a large number of civilians killed.
[20] The defendant's participation as a member of the Jagdzug Baranowitsche (the Jagdzug) is a novel aspect of Walter Obodzinsky's alleged collaboration with the German occupiers. This formation is said to have committed atrocities against the local population and in particular in the course of its fight against the partisans. The defendant's voluntary membership in the Jagdzug as a squadron chief is situated in April or May 1943.
[21] The statement of claim describes some of the Jagdzug's operations in detail. The Jagdzug fought for the first time in July 1943 as a sub-unit of the von Gottberg combat group during operation Hermann, one of the major offensives against the partisans by the Germans and local police. "[translation] These operations were intended to make extensive regions uninhabitable by burning down villages, killing presumed partisans and deporting the remainder of the population to forced labour camps. During operation Hermann, the Jagdzug was attached to the Schutzmannschaft 57 battalion." (Paragraph 24 of the statement of claim.)
[22] Operation Hermann resulted in a huge loss of life, with more than 4,000 civilians killed and more than 20,000 men, women and children deported to forced labour camps. Furthermore, between the summer of 1943 and June 1944, the Jagdzug participated in numerous patrols and operations aimed at fighting the partisans.
[23] The third stage in the defendant's journey with the Germans, the statement of claim alleges, began in late June 1944, when several members of the Mir district Schutzmannschaft and the Jagdzug, including the defendant, pulled back toward the West with the Germans fleeing the advance of the Red Army. They regrouped in the region of Ostenburg and then moved to Rosenberg, a military training camp north of Schwerin in Germany, where the various units were disbanded and incorporated into the 30 Waffen-Grenadier-Division der SS (30th Waffen SS).
[24] It was around August 22, 1944, that the defendant, within his new unit, was transferred to France. Soon afterwards, Mr. Obodzinsky and several other members of Polish origin of the 30th Waffen SS deserted and joined the French Resistance.
[25] Four weeks after these events, the Minister alleges, the defendant and his compatriots were invited to join the Polish Second Corps, at the time under British command, an army formed in 1942 in the USSR when the Soviets allowed certain prisoners of war or Polish deportees to leave the USSR in the wake of Operation Barbarossa.
[26] Following his enlistment, and until November 1946, the defendant was in Italy with the Polish Second Corps.
[27] In 1946 Canada agreed to accept 4,000 former members of the Polish Armed Forces who had served on the Allied side. This special and unique program was ratified by Privy Council order P.C. 3112, dated July 23, 1946 (the order in council).
[28] Order in council P.C. 3112 created a selection team (the Mission) and gave it its terms of reference. The relevant provisions of the order in council, of which only the English version was filed in evidence, read:
AT THE GOVERNMENT HOUSE AT OTTAWA
TUESDAY, the 23rd day of JULY 1946.
PRESENT:
HIS EXCELLENCY,
THE GOVERNOR GENERAL IN COUNCIL:
WHEREAS there exists in Canada an acute shortage of suitable labour for agricultural employment;
AND WHEREAS the Minister of Labour and the Minister of Mines and Resources represent that it is considered necessary to make provision for the early acquisition of suitable labour for agricultural employment;
AND WHEREAS the Minister of Mines and Resources proposes to permit entry into Canada under the authority of the Immigration Act of 4,000 single ex-members of the Polish Armed Forces who served with the Allied Forces engaged in hostilities against the Axis powers and who are presently located in the United Kingdom and Italy and are qualified for and willing to undertake agricultural employment in Canada;
AND WHEREAS the Minister of Labour and the Minister of Mines and Resources represent that it is considered desirable that provision be made for the selection and examination overseas of men for entry into Canada as aforesaid, to settle the conditions relative to their employment in agriculture in Canada, to provide for their placement in employment and for their supervision and welfare while so employed;
NOW, THEREFORE, His Excellency the Governor General in Council, on the joint recommendation of the Minister of Labour and the Minister of Mines and Resources is pleased to order and doth hereby order as follows:-
1. The Minister of Labour is hereby authorized
(a) by arrangement with the Departments concerned to send representatives of the Departments of Mines and Resources and Labour and the Royal Canadian Mounted Police to the United Kingdom and Italy to interview and examine persons of the above-mentioned description for the purpose of selecting 4,000 of such persons for agricultural employment in Canada and to pay the necessary transportation and living expenses of such representatives while so engaged;
. . .
3. Each person permitted entry into Canada as aforesaid shall be granted permanent admission to Canada upon due fulfilment and observance by him of the terms and conditions of the undertaking given by him pursuant to Section 2 of this Order and if otherwise eligible to enter or remain in Canada under the Immigration Act. [Emphasis added]
[29] The Mission, composed of two doctors, two members of the Royal Canadian Mounted Police (RCMP) and two officials in the National Employment Service, arrived in Italy on August 20, 1946. According to the Minister, the selection process was as follows:
[translation]
36. There were several stages in the selection process that the defendant had to undergo pursuant to the aforementioned order in council. At each of them, the defendant had to be in possession of his immigration application form in Polish, an English translation of this form and his confidential Polish Second Corps military notebook.
37. All of the applicants were to meet with the medical officers, the National Employment Service officers and finally the RCMP officers. They had to successfully complete each of the stages before being selected for entry to Canada.
38. The RCMP officers met with the applicants and the latter had to present their military notebook and their immigration application form. Accompanied by an interpreter, the RCMP officers questioned the applicants concerning the circumstances in which they had joined the Polish Second Corps and their past history and activities before joining it.
39. The examination was more rigorous in the case of applicants who had served with the Germans prior to their enlistment in the Polish Second Corps.
40. In particular, the RCMP officers wanted to find out whether the applicants who had served with the Germans could be considered as having voluntarily joined the German security forces. If so, the applicants were rejected. [Emphasis added]
[30] The concealment alleged against the defendant is in having hidden from the RCMP officers:
[translation]
4(a) his voluntary enlistment in an auxiliary police unit established by the German occupation military administration and in the Schutzmannschaft in the district of Mir;
(b) his membership in an auxiliary police unit established by the German occupation military administration, in the Schutzmannschaft in the district of Mir, in the Jagdzug Baranowitsche and in the 30th Waffen SS; and
(c) his activities within these organizations.
[31] The Minister states that the defendant provided the RCMP officers with a military notebook "[translation] containing false and misleading information in that this document simply stated that the defendant had been in the German Army from February 3, 1944 to May 7, 1944" (paragraph 42 of the statement of claim).
[32] The Minister alleges that because "[translation] of the defendant's misrepresentations and knowing concealment of major circumstances concerning his past history and activities during the war, the Canadian authorities were deprived of material information that would have enabled them to validly determine, in full knowledge, the defendant's admissibility to Canada" and that he "[translation] would not have been admitted to Canada if his associations with various units subordinate to the Germans and his activities during the war had been known to the RCMP officers" (paragraphs 43 and 44 of the statement of claim).
[33] Furthermore, "[translation] [A]t the time the defendant applied for Canadian citizenship, good character and acquisition of Canadian domicile were two of the essential conditions that a person had to meet in order to be granted Canadian citizenship" but the defendant "[translation] presented himself to the Canadian authorities as a person of good character notwithstanding his activities during the war, and in particular his collaboration with the Nazi regime" through his voluntary enlistment and his membership in the auxiliary police in the district of Mir and the Jagdzug, as well as his activities within these organizations (paragraphs 45 and 46 of the statement of claim).
[34] The Minister argues that the defendant, in the context of his citizenship application, also presented himself as a person who had acquired Canadian domicile, that is, been legally admitted to Canada in order to acquire Canadian domicile and that because of his false representations and knowing concealment of material circumstances on his application for participation in the agricultural employment program of 1946, he had not been legally admitted to Canada and consequently had never acquired Canadian domicile, and his citizenship application did not meet the requirements provided by law.
[35] The Minister alleges that the Canadian authorities were deprived of necessary information that would have enabled them to rule meaningfully on the defendant's application for citizenship because he falsely presented himself as a person of good character who had acquired Canadian domicile. Through such conduct, the defendant hid from the Canadian authorities information that would have resulted in a refusal to grant him Canadian citizenship.
3. The statement of defence
[36] After an examination for discovery before defence and following an application for a permanent stay that was heard and dismissed by Mr. Justice Nadon, then a judge in the Trial Division of this Court (appeal dismissed by the Federal Court of Appeal and leave to appeal refused by the Supreme Court of Canada), Walter Obodzinsky filed his statement of defence on July 15, 2002.
[37] He acknowledges that he was admitted to Canada on a temporary basis in November 1946 in accordance with the conditions set out in P.C. 3112.
[38] He affirms that on September 28, 1946, the Canadian government issued a final directive in writing (in regard to the defendant's class in particular) to the Mission, establishing the government's position on the selection of Poles from the Second Corps.
[39] This directive "[translation] clearly established that the appropriate instructions were that these officers were to accept not only the Poles who had deserted from German units and had fought against the Germans during the War but also those who had participated in activities hostile to the Germans after being captured by the Allies while they were fighting on the German side" (emphasis added) (paragraph 10 of the statement of defence).
[40] According to the statement of defence, "[translation] the only group that was excluded was even specified in the so-called directive and was the one that had joined the Polish Corps after the end of the hostilities with the Germans" and accordingly "[translation] the plaintiff was well aware, in 1946, that it was admitting persons who, before being members of the Polish Corps, had served in the German units, that these units were regular or German SS units" and therefore that "[translation] even if the statements of the plaintiff [the Minister] were true, they cannot be held against the defendant" (emphasis added) (paragraphs 11, 12 and 14 of the statement of defence).
[41] A number of legal defences were raised by Walter Obodzinsky in response to the conclusion sought by the Minister:
(a) He alleges that he is "[translation] unable to collaborate with his counsel in the preparation of his defence; his capacities being so affected or diminished that he is unable to defend himself without endangering his life or his health; unable to attend any hearing or inquiry; the continuation of the proceedings risks jeopardizing his health and his life through the effect of the stress, creating repeated anginous pains", with the overall result that the plaintiff's legal proceedings constitute cruel and unusual punishment, which is prohibited by section 12 of the Canadian Charter of Rights and Freedoms (the Charter) (paragraph 3 of the statement of defence).
(b) The statutory provisions in relation to the revocation of citizenship procedure, sections 10 and 18 of the Act, in correlation with the Immigration Act, contravene and are incompatible with certain sections of the Canadian Bill of Rights (the Bill of Rights) as well as with sections 7, 12 and 15 of the Charter, and ought to be declared inoperative in regard to the defendant in that the Act does not provide for a full hearing before an independent court or tribunal which determines the right of the citizen whose citizenship is being revoked, fails to guarantee compliance with the principles of fundamental justice, breaches the equality rights of naturalized citizens, is discriminatory and exposes Canadian citizens to a treatment that is proscribed by section 12 of the Charter.
(c) The action against Walter Obodzinsky is taken in the context of the Canadian War Crimes Program, a program that denies the defendant, as a naturalized citizen, "[translation] the consistent application of the law and the same benefits of the law as Canadian citizens by birth, who are not subject to a strategy of fighting or attacking their status for political reasons or alleged suspicions of crime, complicity in war crimes or crimes against humanity". This program, and the action against the defendant, "[translation] constitute discriminatory measures against naturalized citizens and the defendant, which are declared, under the program itself, to be punitive in nature taken for political and/or ethnic reasons and/or because of actual or presumed membership in a particular social group and/or analogous grounds", contrary to section 15 of the Charter and the treatment prohibited by section 12 of the Charter (paragraphs 5 and 6 of the statement of defence).
(d) The Minister's action is prescribed by the Crown Liability and Proceedings Act or the Federal Court Act, or, in the alternative, it is contrary to the doctrine of laches. The statement of defence states that if the Minister was previously unaware of it, she was informed on July 1, 1993, that Walter Obodzinsky was alleged to have been a member, before joining the Polish Second Corps, of a German unit, the Jagdzug, or other German units and that notwithstanding this knowledge, the action was not filed until February 1, 2000, and is therefore prescribed by law.
(e) If this was not the case, the defendant submits that the Minister "[translation] delayed unduly in raising her cause of action and accordingly the defendant... is too ill to defend himself, collaborate in his defence, participate in and attend his trial, which warrants dismissal of the action", and, furthermore, Citizenship and Immigration Canada (CIC) has destroyed the immigration and citizenship records for that period, including the file on Walter Obodzinsky, and all the selection officers are deceased (paragraph 18 of the statement of defence).
(f) Walter Obodzinsky also alleges that at the time of his temporary and permanent admission, Canada had no legal authority to refuse admission on grounds of security even if some security grounds had existed, such as those cited in the statement of claim, that is, membership in some German SS units or as auxiliary police members serving in the German SS units, and accordingly he met all of the conditions in P.C. 3112, and there is no basis for the Minister's action.
(g) Furthermore, it was in 1950 that he was admitted permanently to Canada and he met all the conditions of P.C. 3112 and the Immigration Act.
(h) In addition, the statement of defence argues that the Minister is "[translation] now fully informed by a witness who immigrated to Canada under P.C. 3112 (and who is not targeted in the Canadian War Crimes Program) that he was asked nothing about his past before he was admitted under P.C. 3112 and before he was granted permanent admission, like the defendant".
(i) The statement of defence alleges that at the time his citizenship was granted, Walter Obodzinsky fulfilled all of the conditions of good character provided by the Act and, in the alternative, the allegation that he was not a person of good character when he was granted citizenship for the reasons cited in the statement of claim constitutes a breach of section 15 of the Charter.
4. Some proceedings taken by the defendant
[42] During the evolution of this case, the defendant's counsel filed a number of motions in the Court that I will now discuss as substantive elements that will be used in assessing the evidence gathered during the commission to examine witnesses (the commission) and during the trial and will be of assistance in resolving certain questions of law.
(a) Motion for an order finally staying the proceedings
[43] On June 27, 2000, Mr. Justice Nadon heard the defendant's motion for an order finally staying the Minister's action and dismissed it in a judgment with reasons delivered October 12, 2000, (Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2000] F.C.J. No. 1675).
[44] The following reasons were cited in support of the motion:
(a) the defendant's state of health did not allow him to take part in the trial;
(b) the disclosure of his citizenship record was belated and incomplete;
(c) his immigration record has not been disclosed and was destroyed; and
(d) the proceedings were brought after an undue delay.
[45] Nadon J. accepted the evidence concerning the defendant's state of health, which was not disputed by the Minister, and concluded at paragraph 9 that his health "is precarious and it would be difficult or impossible for him to take an active part in the ongoing proceedings without making his condition worse". However, he dismissed the defendant's submission that continuing the proceedings would constitute a serious abuse, impair the integrity of the judicial system and create a fundamental injustice and, moreover, result in a breach of the rules of fundamental justice contained in section 7 of the Canadian Charter of Rights and Freedoms (the Charter).
[46] Relying on the Federal Court of Appeal judgment in Canada (Secretary of State) v. Luitjens, supra, he held that section 7 of the Charter does not apply to the proceedings prescribed under section 18 of the Act, on the grounds that this proceeding did not impair his right to life, liberty and security of his person. He noted that in Luitjens, the trial judge, Mr. Justice Collier, simply ruled that Mr. Luitjens had obtained his citizenship by false representations, a mere finding of fact that did not have the effect of withdrawing his citizenship or deporting him and thereby infringing or threatening his right to security.
[47] After a lengthy analysis, Nadon J. rejected the defendant's contention that continuing the revocation proceedings would constitute a serious abuse of process, "putting him at risk and subjecting him to a procedure at the end of which his citizenship could be revoked despite his state of health and his inability to defend himself" (paragraph 15). In his view, the doctrine of serious abuse of process, in the circumstances of this case, was inapplicable in the absence of reprehensible conduct by the government, and the evidence did not indicate any such conduct. Nadon J. also dismissed the defendant's submission based on the criminal law, citing cases that had consistently held that the procedure under section 18 of the Act is a civil procedure.
[48] As to the defendant's argument based on the delay in bringing proceedings, Nadon J. noted that the defendant had argued that the delay was clearly harmful to him as he is now too ill to defend himself. Consequently, the delay affected his right to present a defence and the fairness of the hearing to be held and constituted an abuse by the plaintiff. Nadon J. dismissed this argument, writing at paragraph 36 of his reasons:
Certainly, the defendant's state of health has become worse with time, but this is due to the progression of his cardiac problems and not to the delay of the proceedings in the case at bar. In my view, it is only a coincidence that the defendant's state is what it is at this stage of the revocation proceeding. The fact that the defendant is experiencing difficulties participating in the trial and defending himself is not due to an unreasonable delay, it is because of his health. His health problems are not attributable to any fault by the plaintiff. In my view, the defendant has not shown that the delay in the proceedings caused him harm.
[49] The defendant appealed the judgment of Nadon J. to the Federal Court of Appeal, which upheld it on May 23, 2001, (Walter Obodzinsky v. The Minister of Citizenship and Immigration, [2001] F.C.J. No. 797). Mr. Justice Létourneau, on behalf of his colleagues, taking into consideration some recent judgments of the Supreme Court of Canada concerning section 7 of the Charter, was of the opinion that Nadon J. had properly directed himself as to the law, and that he had exercised his discretion judiciously after considering the Charter arguments and the submissions based on the doctrine of abuse of process.
[50] On February 14, 2002, the Supreme Court of Canada dismissed an application to stay the proceeding and an application for leave to appeal the decision of the Federal Court of Appeal in this reference.
(b) Motion under Rule 220 asking the Court to determine two preliminary questions of law before trial
[51] In late March 2002, the defendant filed a motion asking the Court to determine, before trial, two preliminary questions of law. He asked that the Court determine whether sections 10 and 18 of the Act, in correlation with certain provisions of the Immigration Act, are consistent with the Bill of Rights and the Charter.
[52] On June 13, 2002, Nadon J. dismissed this motion (Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2002] F.C.T. 669) on four grounds.
[53] First, he expressed the opinion, in paragraph 9, that "the questions of law which the defendant is asking the Court to answer are only for the most part a reformulation of the points of law raised by the defendant in connection with his motion for a stay order. This can be seen from reading the memorandum of fact and law filed by the defendant in the Federal Court of Appeal and his application for leave to appeal filed with the Supreme Court of Canada."
[54] Second, Nadon J. found, in paragraph 10, that the defendant "is again attempting to challenge the merits of the Federal Court of Appeal's judgment in Luitjens v. Canada (Secretary of State)", supra, a decision that the Federal Court of Appeal had recently reiterated in a decision dated November 29, 2001, in Canada (Minister of Citizenship and Immigration) v. Fast, supra.
[55] Third, Nadon J. explained that the defendant, by his questions of law, "asked this Court to decide on the constitutionality of the revocation procedure set out in ss. 10 and 18 of the Act" and he concluded, at paragraph 12 of his decision:
¶ 12 Since the referral mentioned in s. 18.1 of the Act applies only to a conclusion of fact, namely whether the defendant obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances, I consider that the questions suggested by the defendant are not in any way relevant since, as the Federal Court of Appeal held in Luitjens and Fast, supra, and in Katriuk v. Canada (1999), 252 N.R. 68, the decision made by this Court in connection with s. 18.1 is only a preliminary finding, "which may later form the basis for a decision by the Governor in Council to revoke his citizenship" and consequently such a decision has no impact on the life, liberty or security of the person. [Emphasis added]
[56] Again citing Luitjens, supra, Nadon J. dismissed a further aspect of the defendant's argument, concerning the second stage of the revocation procedure, namely the decision which the Governor in Council may make. In his opinion, the questions proposed by the defendant were premature.
[57] Fourth, at paragraph 14, he refused to formulate the questions as requested since, "in view of the applicable case law in this Court and in the Supreme Court of Canada, the answers to the questions suggested by the defendant will not be in his favour and so the determination before trial sought by the defendant will in no way dispose of the case in whole or in part."
(c) Motion for summary judgment
[58] By a motion filed on August 5, 2002, under Rule 213 of the Federal Court Rules, 1998 (the Rules), the defendant sought summary judgment on the grounds that the Minister lacked