Hassouna v. Canada (Citizenship and Immigration)

Hassouna v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-05-10
Neutral citation
2017 FC 473
File numbers
T-1-16, T-1584-15, T-213-16, T-2154-15, T-27-16, T-273-16, T-438-16, T-6-16
Notes
A correction has been made on December 14, 2017
Reported Decision
Decision Content
Date: 20170510
Dockets: T-1584-15
T-6-16
T-27-16
T-1-16
T-213-16
T-273-16
T-2154-15
T-438-16
Citation: 2017 FC 473
Ottawa, Ontario, May 10, 2017
PRESENT: The Honourable Madam Justice Gagné
Docket: T-1584-15
BETWEEN:
ABDULLA AHMAD HASSOUNA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
Docket: T-6-16
BETWEEN:
TAREQ MADANAT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: T-27-16
BETWEEN:
THOMAS GREGORY GUCAKE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
Docket: T-1-16
BETWEEN:
HISHAM AJJAWI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
Docket: T-213-16
BETWEEN:
PHILIPP PARKHOMENKO
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES, AND CITIZENSHIP CANADA
Respondent
Docket: T-273-16
BETWEEN:
CHAOHUI SITU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: T-2154-15
BETWEEN:
MUHAMMAD SHAHID BANDUKDA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Docket: T-438-16
BETWEEN:
SAKR, MARIE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview [1] These applications for judicial review are brought forward by the eight Applicants in lead cases challenging the constitutionality of the revocation or proposed revocation of citizenship on grounds of fraud or misrepresentation under the Citizenship Act, RSC 1985, c C-29, as amended by the Strengthening Canadian Citizenship Act, SC 2014, c 22 [SCCA].
[2] Under the former revocation system, all persons who received a Notice of intent to revoke their citizenship had the option to have the issue of whether they had obtained their citizenship through fraud or misrepresentation considered by this Court. The new system brought forward by the SCCA provides for two different procedures: a judicial model for complex cases, as identified by statute; and an administrative model for “non-complex” cases. Only the administrative model is under review in these applications.
[3] On January 19, 2016, this Court granted an injunction preventing the Minister of Citizenship and Immigration (now the Minister of Immigration, Refugees and Citizenship or MIRC or IRCC) from further processing cases of individuals who had received a Notice of intent to revoke their citizenship but had not yet received a final decision regarding same.
[4] On February 23, 2016, Justice Russell Zinn, acting as case management judge, issued an order stating that this case managed litigation would be proceeding by lead cases on the basis of common legal issues. All other non-lead cases are held in abeyance pending the final disposition of the lead cases.
[5] Although the lead cases raise common issues, they were likely chosen for the variety of factual backgrounds they offer.
[6] Some Applicants (Mr. Madanat, Mr. Ajjawi, and Mr. Bandukda) have in fact had their citizenship revoked, while no decisions are yet rendered with respect to the others whose files were caught up by the injunction rendered by this Court.
[7] Some Applicants (Mr. Hassouna, Mr. Madanat, and Ms. Situ) had received a Notice of intent to revoke their citizenship under the previous regime and, although they had asked for their files to be referred to this Court for a factual determination, they were not. When sending a second Notice of intent under the current regime, the Minister took the position that the previous Notices were cancelled by virtue of the application of the transitional provisions of the SCCA. Other Applicants only received a Notice of intent to revoke under the current regime.
[8] Some Applicants (Mr. Hassouna, Mr. Ajjawi, Mr. Parkhomenko, and Ms. Situ) would become stateless should their Canadian citizenship be revoked; others would not as they have or had dual citizenship.
[9] Some Applicants (Mr. Gucake, Mr. Parkhomenko, and Ms. Situ) would become foreign nationals should they lose their citizenship – on account of the interplay between the Citizenship Act, as amended by the SCCA, and the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] – as the fraud or misrepresentation was made at the time they acquired their permanent residence. On the other hand, those individuals who are alleged to have committed fraud or to have misrepresented their situation only when they applied for citizenship would revert to being permanent residents.
[10] Finally, the nature of the alleged frauds or misrepresentations, which form the object of the revocations or proposed revocations, varies from one applicant to the other. Mr. Hassouna, Mr. Ajjawi, and Mr. Bandukda are said to have misrepresented details pertaining to their residency during the period immediately preceding their application for citizenship; Mr. Madanat and Ms. Sakr’s applications for citizenship also contained alleged misrepresentations regarding their residency, however these applications were submitted on their behalf by a parent as both Applicants were minors at the time; Mr. Gucake and Mr. Parkhomenko’s fathers allegedly failed to declare previous criminal convictions when they applied for permanent residence on their behalf and on behalf of their respective families; and Ms. Situ is alleged to have omitted to declare, on her application for permanent residence based on spousal sponsorship, that she no longer lived with her sponsor and was in the process of divorcing him.
[11] As these applications for judicial review do not question the reasonableness of the decisions rendered – when a decision was rendered, but rather deal with the administrative process created by the SCCA, there will be no need for a detailed review of the factual background of each application. The relevant facts will be addressed only if necessary to deal with a common issue.
II. Legal Background [12] The SCCA came into force on May 28, 2015. It amended and repealed various provisions of the Citizenship Act, resulting in material changes to the provisions regarding revocation of citizenship. For convenience of reference hereinafter the Citizenship Act as it read prior to the amendments brought by the SCCA shall be referred to as the Former Act, and afterwards, as the Amended Act.
A. Revocation under the Former Act [13] Under the Former Act, an individual’s citizenship could be revoked pursuant to section 10 where it was established that citizenship was acquired “by false representation or fraud or by knowingly concealing material circumstances”. A final decision could only be reached by the Governor in Council, based on a report by the Minister.
[14] Prior to issuing a report, the Minister was required to send a Notice of intention to revoke citizenship to the affected individual, outlining the grounds for revocation. The individual could then exercise their right to have the matter referred to the Federal Court within 30 days, failing which the Minister could submit his report to the Governor in Council recommending that citizenship be revoked.
[15] If the affected individual did request that the matter be referred to the Federal Court, the Minister would then bring an action in the Federal Court for a declaration that the person obtained Canadian citizenship “by false representation or fraud or by knowingly concealing material circumstances”. The procedure before the Federal Court provided for an oral hearing and full disclosure of relevant materials in the possession of the Minister. If the Federal Court was satisfied that the Minister had established on a balance of probabilities that the individual had obtained citizenship by fraud or misrepresentations, a declaration to that effect would be issued.
[16] Only when such a declaration was made by the Federal Court could the Minister issue his report to the Governor in Council. This report would be disclosed to the individual, who had the opportunity to make written submissions in response. The Minister would consider the written submissions and attach them to the final report. The final determination was made by the Governor in Council, who could consider equitable circumstances and had the discretion to consider humanitarian and compassionate grounds when deciding whether to revoke an individual’s citizenship.
B. Revocation under the Amended Act [17] Under the Amended Act, an individual’s citizenship can be revoked by the Minister, pursuant to subsection 10(1), if he “is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances”. Requirements under subsection 10(3) of the Amended Act prescribe that prior to revoking the citizenship of the individual concerned, the Minister shall provide a written notice that specifies “the person’s right to make written representations” and “the grounds on which the Minister is relying to make his or her decision”. In some circumstances, the Minister must seek a declaration from the Federal Court before revoking an individual’s citizenship. However, and as indicated above, none of the exceptions apply in these cases.
[18] Under subsection 10(4) of the Amended Act, the Minister has the discretion to allow that a hearing be held if, “on the basis of prescribed factors”, he or she “is of the opinion that a hearing is required”. Pursuant to section 7.2 of the Citizenship Regulations, SOR 93-246, the prescribed factors allow for an oral hearing where there is a serious issue of the individual’s credibility, where the individual is unable to provide written submissions, or where the grounds for revocation are related to a conviction and sentence imposed outside Canada for an offence that, if committed in Canada, would constitute a terrorism offence.
[19] Notice of the Minister’s final determination regarding the revocation of the individual’s citizenship is made in writing. There is no appeal provided under the Amended Act; the sole recourse against a decision by the Minister is an application for leave for judicial review to this Court pursuant to section 22.1 of the Citizenship Act.
C. Transitional provisions under the Amended Act [20] In order to address matters which arose prior to the effective date of the Amended Act, the SCCA contains transitional provisions that can be found at its sections 32 and 40. Most relevant to the cases before me is subsection 40(1) which provides that “[a] proceeding that is pending before the Federal Court immediately before the day on which section 8 comes into force, as a result of a referral under section 18 of the Citizenship Act as that section 18 read immediately before that day, is to be dealt with and disposed of in accordance with that Act, as it read immediately before that day”.
[21] For ease of reference, all the relevant statutory provisions are reproduced in annex to these reasons.
III. Issues [22] The common legal issues to be litigated on the basis of the lead cases, as outlined by Justice Zinn and in light of the submissions made by the parties, are as follows:
A. Are some of these applications for judicial review premature?
B. Where the Minister issued a notice of revocation under the Former Act, and the applicant requested a referral to the Federal Court but no such referral was made by the Minister, is the revocation to be determined in accordance with the provisions of the Former Act or the Amended Act?
C. Are any of subsections 10(1), 10(3), or 10(4) of the Amended Act unconstitutional as violating paragraphs 1(a) and 2(e) of the Canadian Bill of Rights?
D. Are any of subsections 10(1), 10(3), or 10(4) of the Amended Act unconstitutional as violating section 7 of the Charter?
E. Does section 10 of the Amended Act subject an individual to cruel and unusual treatment in violation of section 12 of the Charter?
F. If there is a violation of either section 7 or section 12 of the Charter, can it be saved under section 1 of the Charter?
IV. Analysis A. Are some of these applications for judicial review premature? [23] The Respondent argues that with respect to those five Applicants for whom no revocation decisions have yet been rendered (Mr. Hassouna, Ms. Sakr, Mr. Parkhomenko, Ms. Situ, and Mr. Gucake), it would be premature for this Court to consider their applications for judicial review. In other words, it would be premature for this Court to decide whether the revocation process breaches the constitutional rights of these Applicants, when the administrative process under review has not yet run its course. Doing so, says the Respondent, would go against the principle that a constitutional challenge should not be adjudicated in a factual vacuum (Mackay v Manitoba, [1989] 2 SCR 357). As a consequence, the Respondent opposes those Applicants’ position to rely on the others’ factual background and legal submissions regarding different issues raised by their applications.
[24] I disagree with the Respondent.
[25] First, in May v CBC/Radio Canada, 2011 FCA 130 at paragraph 10, the Federal Court of Appeal held that “ongoing policies that are unlawful or unconstitutional may be challenged at any time by way of an application for judicial review seeking, for instance, the remedy of a declaratory judgment”. The five Applicants for whom no decision has yet been rendered as a result of the injunction delivered by this Court are well engaged in the impugned revocation process; they were all sent a Notice of intent to revoke their citizenship under the Amended Act – two of them had received a Notice of intent to revoke under the Former Act, which was purportedly cancelled by the new Notice; they all filed written submissions with the Minister’s delegate, and; most requested and were refused an oral hearing. They are therefore directly affected by the matter in respect of which relief is sought.
[26] Second, although it is true that constitutional challenges should not be made in a factual vacuum, it is not the case here. I have a voluminous evidentiary record before me: both parties have filed several affidavits and they conducted cross-examinations of the other party’s affiants. In fact, there is sufficient evidence in the file, in terms of statistics (for example: no hearing has yet been held by a Minister’s delegate; and the Minister’s discretion was only exercised once to not revoke the citizenship of an interested person who filed written submissions), to strongly suggest that, absent their applications for judicial review, those five Applicants would likely have had their citizenship revoked.
[27] Finally, it was decided during a hearing management conference that counsel for the Applicants would share the time allocated for the hearing of these eight lead cases. It was also decided who would be speaking to what issue. To avoid repetition, all relied on the others’ written and oral submissions. That is quite acceptable and viewed as conducive to the proper administration of justice. As these cases have been joined for hearing, with the consent of the Respondent, it is also quite acceptable that the evidentiary record be considered jointly for the purpose of the declarations sought by all Applicants and the assessment of the common issues.
[28] I therefore conclude that none of the applications for judicial review before me are premature.
B. Where the Minister issued a notice of revocation under the Former Act, and the applicant requested a referral to the Federal Court but no such referral was made by the Minister, is the revocation to be determined in accordance with the provisions of the Former Act or the Amended Act? [29] Counsel for Mr. Hassouna spoke to that issue and argued that his client’s file, and that of the two other Applicants who have received a Notice of intent to revoke under the Former Act, should be addressed in accordance with the former revocation process.
[30] He argues that section 40 of the SCCA should be interpreted in a manner that gives a meaning to each of its subsections (1) to (4) and that it should not be interpreted such that the Amended Act has a retroactive effect. He further argues that the interpretation he suggests is compliant with the decisions of this Court in Canada (Minister of Citizenship and Immigration) v Zakaria, 2014 FC 864 and Canada (Citizenship and Immigration) v Rubuga, 2015 FC 1073.
[31] He suggests that subsection 40(1) of the SCCA, and consequently the former revocation process, apply in both of the following scenarios:
i. when the notice was given under the Former Act, the affected individual had requested that the file be referred to the Federal Court within the 30 days time limit, and the Minister had served and filed its statement of claim with this Court, and
ii. when the notice was given under the Former Act, the affected individual had requested that the file be referred to the Federal Court within the 30 days time limit, but the Minister had not yet served and filed its statement of claim.
[32] Counsel for Mr. Ajjawi supports those arguments and further pleads that, in several cases before me, there was an unreasonable and unjustified delay between the time the Minister was informed of the alleged fraud or misrepresentations and the time the Applicants received the Notice of intent to revoke under the Amended Act. This delay far exceeds the inherent time requirement to process the matter and results in an abuse of process.
(1) Applicants concerned by those issues [33] Mr. Hassouna, a Palestinian refugee who was born in Lebanon and was granted Canadian citizenship on April 19, 2006, received a revocation notice under the Former Act in February 2012. The notice followed an investigation stemming from the sponsorship applications he made for his wife and son. The investigation concluded that Mr. Hassouna was continuously residing in Kuwait during the relevant period prior to obtaining citizenship.
[34] Eight days after Mr. Hassouna received the notice, he requested that the matter be referred to the Federal Court. In the 3 years and 105 days that followed before the SCCA came into force, the Minister did not refer the matter to the Federal Court.
[35] Instead, Mr. Hassouna received a second revocation notice on July 13, 2015, pursuant to the Amended Act, 46 days after it came into force. The second revocation notice purports to cancel the initial revocation notice.
[36] Mr. Madanat is a citizen of Jordan who became a Canadian permanent resident on August 15, 2001. He was granted Canadian citizenship on December 16, 2005.
[37] On June 29, 2011, Mr. Madanat received a notice of revocation pursuant to the Former Act. He requested that the matter be referred to the Federal Court; however, in the years between the issuance of the notice of revocation and the coming into force of the SCCA, he did not receive any communication from the Minister.
[38] Instead, he received a second notice of revocation in September 2015, pursuant to the Amended Act. His citizenship was revoked on December 7, 2015.
[39] Ms. Situ, a Chinese citizen, came to Canada as a student in 2002. She became a permanent resident on November 5, 2003, and a Canadian citizen on June 14, 2007.
[40] Ms. Situ received a Notice of intent to revoke citizenship, dated July 28, 2011, pursuant to the Former Act. On September 21, 2011, she requested that the matter be referred to the Federal Court. No statement of claim was filed by the Minister.
[41] Instead, almost 5 years later, Ms. Situ received a new Notice of intent to revoke citizenship, dated February 3, 2016, pursuant to the Amended Act. The record demonstrates that the Minister was apprised of Ms. Situ’s date of divorce on March 2, 2007, prior to granting her Canadian citizenship in June 2007.
[42] Mr. Ajjawi only received a Notice of intent to revoke his citizenship under the Amended Act. However, IRCC was aware of the alleged fraud or misrepresentation and was in possession of all the evidence necessary to initiate the revocation process as early as 2006 and yet, waited until 2015 to do so.
[43] He requested that his personal circumstances be considered and cited disastrous consequences flowing from the revocation of his citizenship, such as the fact that he would be rendered stateless by the loss of Canadian citizenship, he would lose his employment in the United Arab Emirates, and in turn would be forced to return to Lebanon where Palestinians such as himself are deprived of civil rights. The Senior Analyst refused to grant him the requested hearing and on November 30, 2015, a decision by the Minister was rendered and Mr. Ajjawi’s citizenship was revoked.
[44] Messrs. Gucake and Parkhomenko also only received a Notice of intent to revoke under the Amended Act, but respectively after 8 and 14 years of IRCC having been made aware of the alleged fraud or misrepresentations.
(2) Transitional provisions [45] Subsection 40(1) of the SCCA states that in circumstances where a proceeding was pending before the Federal Court, as a result of a referral requested by the affected individual under section 18, prior to the coming into force of the Amended Act, the proceeding ought to be dealt with in accordance with the provisions of the Former Act.
[46] With respect, I am unable to read that provision as including the second scenario envisaged at paragraph 31 ii) above. In my view, the plain meaning of the words used indicates that in order for these Applicants’ cases to be dealt with pursuant to the Former Act, a proceeding had to be pending before the Federal Court prior to May 28, 2015. A proceeding is commenced by the issuance of an originating document (Vaughan v R, [2000] FCJ No 311; Federal Courts Rules, SOR/98-106, r 62). Therefore, in order for a proceeding to be pending before this Court, a statement of claim had to be served and filed. I disagree with the Applicants that a proceeding was pending before this Court by virtue of the mere request, on their part, to have the matter referred to the Court for adjudication under the previous scheme.
[47] The Applicants rely on Zakaria in support of the proposition that once the Minister made allegations in the Notice of intent of revocation, the legal process begins and the proceeding is pending. I only partially agree. The Applicants are correct to interpret Zakaria to mean that once the Minister sends a Notice of intent to revoke, the citizenship revocation process begins. However, I do not agree that this means that a proceeding is pending before the Federal Court. It is not merely a proceeding which must be pending, but rather a proceeding before the Federal Court, which is a unique prong of the former citizenship revocation process. I do not think that a request for referral to the Federal Court, without more, gives rise to a proceeding which can be said to be pending before this Court.
[48] The Applicants also rely on Rubuga, in which this Court stated that where an applicant has taken positive action in the procedure by exercising his or her right to request that the case be referred to the Federal Court, they are deemed to have “already participated in the proceeding” (Rubuga, above at para 45). However, this was in reference to the overall procedure to revoke the applicant’s citizenship, not the distinct adjudication proceeding before the Federal Court – the two ought not to be confounded.
[49] The former citizenship revocation process began once a Notice of intent of revocation was made out by the Minister. However, the question is not whether the Minister had commenced a revocation process against the Applicants; for the purpose of subsection 40(1) of the SCCA, the question is whether a proceeding was pending before the Federal Court. This, in my opinion, requires more.
[50] Accordingly, the notices issued to Messrs. Hassouna and Madanat, and to Ms. Situ, under the Former Act, were cancelled pursuant to subsection 40(4) of the SCCA.
(3) Unreasonable and unjustified delay [51] In Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307, 2000 SCC 44 at paragraph 101, the Supreme Court of Canada held that in order for a delay to warrant a stay of proceedings as a result of an abuse of process, there must be significant prejudice which results from that delay.
[52] Before me, counsel for Mr. Ajjawi did not argue that the fairness of the hearing was compromised as a result of the delay. Rather, he argued that this delay amounts to an abuse of process because it is clearly unacceptable and because it directly caused Mr. Ajjawi significant prejudice. Had the revocation process been initiated in 2006 when IRCC was made aware of all the relevant facts, Mr. Ajjawi’s citizenship would have been revoked under the previous process and Mr. Ajjawi could have reapplied for citizenship after five years rather than after the ten-year delay provided for under the Amended Act.
[53] In Chabanov v Canada (Citizenship and Immigration), 2017 FC 73, this Court recently applied the three factors to be considered in assessing delay (Chabanov, above at para 47; Blencoe, above at para 160), to the revocation process established by the Amended Act. Those factors are:
1. The time taken compared to the inherent time requirements;
2. The causes of the delay beyond the inherent time requirements of the matter; and
3. The impact of the delay, including prejudice and other harms.
[54] In Chabanov, IRCC had waited eleven years after it had received, from the Royal Canadian Mounted Police [RCMP], a confirmation of the applicant’s overseas convictions, before initiating the revocation process. There, Justice Strickland did not feel the need to decide whether for delay to qualify as an abuse of process, it must be part of an administrative or legal proceeding already underway, as it was held in Torre v Canada (Citizenship and Immigration), 2015 FC 591. She rather found that if the whole eleven-year period had to be considered, it was well beyond the normal time within which a matter of this nature can be concluded. She was therefore ready to concede that the first Blencoe factor was met. I reach the same conclusion regarding Messrs. Ajjawi, Gucake, and Parkhomenko, as well as Ms. Situ.
[55] As to the second Blencoe factor, Justice Strickland found that the respondent had not provided sufficient evidence, in an affidavit from a legal assistant with the Department of Justice, to justify the delay. Mere assertions by the respondent that the citizenship program was under-resourced and had growing file inventories, and that by 2010 citizenship revocation was identified as priority, has not been found sufficient.
[56] More substantial evidence was presented before me. According to the Respondent, the citizenship program was under-resourced and the file inventory was up to 300 files; the former revocation system – with judicial bifurcation – was simply not working. In 2009, as a result of an RCMP investigation into a scheme involving immigration consultants who charged exorbitant fees to assist individuals in obtaining citizenship fraudulently, IRCC observed a 700% increase in the inventory of possible citizenship revocations. For example, from July 2011 to December 2011, the number of people under investigation rose from 1,800 to 2,100 and IRCC was able to process only 31 revocation files. Priority shifted at IRCC and by April 2012, $600,000 was temporarily allocated to the Case Management Branch to provide it with the capacity to begin the revocation process for 300 cases during the 2012-2013 fiscal years. During a press conference held by the then Minister in September 2012, he noted that IRCC was investigating 11,000 individuals from over 100 countries and had identified 3,100 Canadian citizens who were suspected of having obtained their citizenship fraudulently. At that point, individuals who received notices of intent to revoke their citizenship were seeking referrals to the Federal Court in unusually high number. In sum, the Respondent argues that the previous revocation process was ill-equipped to address this unanticipated increase.
[57] It could be that part of the delay in initiating and processing the citizenship revocation files of the Applicants is the result of a political choice by the government and IRCC and priorities identified by them.
[58] However, and although the Applicants did not contribute to or waive part of the delay, I am of the view that the special circumstances resulting from the extensive fraud exposed by the RCMP during the course of 2009 and 2010 exerted substantial pressure on a system that was already saturated and overburdened. IRCC used as efficiently as possible those resources which it had available (Blencoe, above at para 160). Thus, those special circumstances justify, in large part, the prolonged delay.
[59] Since I conclude that the second Blencoe factor is not met, I do not need to fully analyze the third factor, which is the impact of the delay on the Applicants. Suffice it to say that in my view, the evidence does not support a conclusion that Mr. Ajjawi suffered significant prejudice as a result of the delay.
[60] Mr. Ajjawi’s argument that he could have reapplied for citizenship in five years rather than ten years after the revocation, had the process been initiated under the Former Act, is merely speculative. We do not know what Mr. Ajjawi would have done without his Canadian citizenship and without his employment in the United Arab Emirates for a period of five years. On the other hand, Mr. Ajjawi was able to maintain his employment during the whole period because he remained a Canadian citizen. It seems to me that in his case, the benefits outweigh the disadvantages.
[61] I therefore conclude that the Blencoe factors are not met and that the delay in the initiation of the Applicants’ revocation process does not warrant a stay of proceedings.
C. Are any of subsections 10(1), 10(3), or 10(4) of the Amended Act unconstitutional as violating paragraphs 1(a) and 2(e) of the Canadian Bill of Rights? [62] This issue was also argued by counsel for Mr. Hassouna and Mr. Ajjawi.
[63] Section 2(e) of the Canadian Bill of Rights, SC 1960, c 44 provides:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […]
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.
[64] Before addressing the alleged breaches of the Applicants’ right to a fair hearing in accordance with the principles of fundamental justice, what must be determined from the outset is whether section 2(e) of the Bill of Rights applies in respect of the Minister’s decision-making process.
[65] The Bill of Rights was enacted as an ordinary statute of the Parliament of Canada applying only to federal laws. With the adoption of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, the Bill of Rights lost most of its importance as the majority of the rights and freedoms guaranteed by it are now embedded in the Charter (Canadian National Railway Company v Western Canadian Coal Corporation, 2007 FC 371 at para 18).
[66] Nevertheless, two provisions of the Bill of Rights are not duplicated by the Charter; one of which is the guarantee of a fair hearing for the determination of a person’s rights and obligations, as found in section 2(e). This provision extends beyond the protection afforded in the Charter and remains an operative constraint on federal activity (Hogg, Peter W, Constitutional Law of Canada, Toronto: Carswell, loose-leaf ed at 32-2). Therefore, the Bill of Rights continues to operate notwithstanding the Charter (MacBain v Lederman, [1985] 1 FCR 856).
[67] In The Queen v Drybones, [1970] SCR 282, the Supreme Court of Canada confirmed that where a statute is inconsistent with the Bill of Rights, it is to be declared inoperative, unless it expressly declares that it operates notwithstanding the Bill of Rights.
[68] In Singh v Minister of Employment and Immigration. [1985] 1 SCR 177, at paragraph 96, the Supreme Court of Canada concluded that the following must be established in order for a breach of section 2(e) to exist: (1) and individual’s rights and obligations fall to be determined; and (2) the individual must not have been afforded a fair hearing in accordance with the principles of fundamental justice.
[69] This Court expanded on the above conditions in Canadian National Railway Company, at paragraph 22, and established that four basic conditions must be met in order for paragraph 2(e) to be engaged:
1. The applicant must be a “person” within the meaning of paragraph 2(e);
2. The arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”;
3. The arbitration process must be found to violate “the principles of fundamental justice”; and
4. The alleged defect in the arbitration process must arise as a result of a “law of Canada” which has not been expressly declared to operate notwithstanding the Canadian Bill of Rights.
[70] For the following reasons, I agree with the Applicants that the four above-mentioned conditions are met and therefore, pursuant to section 2(e), subsections 10(1), 10(3), and 10(4) of the Citizenship Act ought to be declared inoperative.
(a) 1st Requirement [71] The first requirement is met in this case. As individuals affected by the legislation, the Applicants clearly constitute “persons” within the meaning of section 2(e). Nothing more needs to be established to meet the first requirement.
(b) 2nd Requirement [72] The second condition requires that the process constitute a hearing for the determination of the Applicants’ rights. A low threshold must be met in order for a process to be considered a “hearing” for the purpose of section 2(e). According to the Supreme Court of Canada in Authorson v Canada (Attorney General), [2003] 2 SCR 40, 2003 SCC 39 at paragraph 61, a hearing falls under the ambit of section 2(e) of the Bill of Rights where there is “the application of law to individual circumstances in a proceeding before a court, tribunal or similar body”.
[73] In my view, a determination by an immigration officer in this case involves a decision concerning the Applicants’ right to citizenship; it involves the application of law, namely section 10 of the Amended Act, to the Applicants’ individual circumstances. Therefore, the determination of an immigration officer pursuant to section 10 of the Amended Act constitutes a hearing for the purpose of section 2(e) of the Bill of Rights.
[74] In order to satisfy the second condition, the hearing must be for the determination of the Applicants’ “rights and obligations”. The Respondent argues that citizenship is a privilege and not a right (Benner v Canada (Secretary of State), [1997] 1 SCR 358 at para 72; Canada (Minister of Citizenship and Immigration) v Tobiass, [1997] 3 SCR 391 at para 108; Canada (Minister of Citizenship and Immigration) v Dueck, [1998] 2 FCR 614 at para 42; Canada (Citizenship and Immigration) v Pereira, 2014 FC 574 at para 21). Consequently, they argue that it does not attract the protection of the Bill of Rights. Respectfully, I do not agree.
[75] In my opinion, citizenship is a privilege only when it has not yet been obtained. Access to citizenship, for someone to whom it has not yet been granted, is a privilege (Benner, above at para 72). In order to be granted citizenship, the onus is on the applicant to demonstrate that they meet the requirements of the Act (Pereira, above at para 21). In Canadian National Railway Company, at paragraph 28, this Court stated that section 2(e) has been held to be inapplicable to the granting of a mere “privilege”, such as citizenship.
[76] However, this ought not to be interpreted so as to extend to the rights associated with citizenship, once granted. Once acquired, the rights flowing from citizenship have vested. Therefore, once acquired, citizenship is a right (Taylor v Canada (Minister of Citizenship and Immigration, 2006 FC 1053 at para 44).
[77] The Applicants have already obtained citizenship and as a result possess a bundle of derivative rights such as the right to vote (a right under section 3 of the Charter), the right to enter or remain in Canada (a right under subsection 6(1) of the Charter), the right to travel abroad with a Canadian passport, and access to the Federal Public Service. These are the rights they obtain once they transition from being permanent residents to citizens.
[78] The balance of rights which would be lost, were the Applicants to revert to foreign nationals – which is the case for the Applicants who allegedly misrepresented on their permanent residence applications – is even larger. Those affected individuals who would become foreign nationals would lose, on top of the rights enumerated above, access to most social benefits that Canadians receive, such as health care coverage; the ability to live and work in any province (rights under subsection 6(2) of the Charter), or study anywhere in Canada; and, for a period of ten years, the ability to apply for Canadian citizenship (Citizenship Act, above, s 22(1)(f)).
[79] In light of the numerous rights granted by the acquisition of citizenship, and what is at stake as a result of the citizenship revocation process, it is clear in my mind that citizenship revocation ought to fall within the “rights and obligations” threshold provided by section 2(e) of the Bill of Rights.
(c) 3rd Requirement [80] I also find that the third requirement, namely that the process be found to violate the principles of fundamental justice, is satisfied in these cases.
[81] In Duke v The Queen, [1972] SCR 917 at page 923, the Supreme Court of Canada held that section 2(e) requires that a federal tribunal adjudicating upon rights must “act fairly, in good faith, without bias and in a judicial temper”, and must give a party the opportunity to adequately state his or her case (Duke, above at 923).
[82] The jurisprudence indicates that when conducting an analysis under the Bill of Rights, one must establish the degree of procedural fairness owed.
[83] The duty of procedural fairness varies with the context of each case, the particular statute, and the rights affected (Canadian National Railway Company, above at para 33). In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, Justice L’Heureux-Dubé stated at paragraph 21:
The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. As I wrote in Knight v. Indian Head School Division No. 19, 1990 CanLII 138 (SCC), [1990] 1 S.C.R. 653, at p. 682, “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), 1990 CanLII 31 (SCC), [1990] 3 S.C.R. 1170, per Sopinka J.
[84] The Supreme Court of Canada, in Baker, identified the following non-exhaustive factors as relevant in determining the content of the