Judgments

     T-1714-02

    2003 FC 970

The Minister of Citizenship and Immigration (Plaintiff)

v.

Steven John Schneeberger (Defendant)

Indexed as: Canada (Minister of Citizenship and Immigration)v. Schneeberger (F.C.)

Federal Court, Dawson J.--Vancouver, March 18; Guelph, Ontario, August, 25, 2003.

Citizenship and Immigration -- Status in Canada -- Citizens -- Defendant committed criminal offences while citizenship application pending -- Tried to avoid prosecution by providing false blood sample to police -- Under Citizenship Act, s. 22(1)(b), person shall not be granted citizenship if charged with indictable offence -- Meaning of "knowingly concealing material circumstances" in s. 10 -- Although genuine issue as to whether defendant lied to Citizenship Judge, providing false blood sample constituting false representation; knowing concealed material circumstance that someone else's blood contained in tube inserted in arm -- Defendant thereby circumventing further police inquiry likely to have led to criminal charges rendering him ineligible for citizenship -- Summary judgment declaring obtained citizenship by false representation, knowingly concealing material circumstances, granted.

Practice -- Summary Judgment -- Plaintiff seeking summary judgment under Federal Court Rules, 1998, r. 213(1) declaring defendant obtained citizenship by false representation, fraud, knowingly concealing material circumstances -- Summary judgment available in citizenship revocation proceedings -- Order sought on summary judgment consistent with nature of reference under Citizenship Act, s. 18(1) -- Criteria for granting summary judgment reviewed -- No genuine issue to be tried with respect to existence of facts establishing false representation, knowing concealment of material circumstance, legal conclusions flowing therefrom.

This was a motion for summary judgment declaring that the defendant obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. The defendant acquired permanent resident status in Canada in November 1989 and applied for Canadian citizenship. In October 1992, he committed two criminal offences: administering a stupefying or overpowering drug and sexual assault. He denied any involvement in the offences and attempted to "clear himself" of the allegations and to avoid prosecution by providing a false blood sample to the police. On February 5, 1993, a Citizenship judge approved the defendant's application for citizenship. Five years later, the defendant was charged with a number of criminal offences, including the sexual assault and administering the stupefying or overpowering drug, and was later found guilty of those offences. Under paragraph 22(1)(b) of the Citizenship Act, a person shall not be granted citizenship or take the oath of citizenship while charged with an indictable offence under any Act of Parliament. The Minister asserted that the defendant falsely represented that he was not under a criminal investigation, and that he obtained his citizenship by lying to the Citizenship Judge and by knowingly concealing material circumstances from both the Citizenship Judge and the RCMP. The Minister also argued that, on the uncontradicted evidence before the Court, the facts did not raise a genuine issue for trial within the meaning of subsection 216(1) of the Federal Court Rules, 1998.

Held, the motion should be allowed.

This was one of the first cases where summary judgment was sought in a citizenship revocation proceeding. In Canada (Minister of Citizenship and Immigration) v. Obodzinsky, the Federal Court of Appeal did not conclude that summary judgment would never be available in the context of a revocation proceeding or in respect of a reference under the Citizenship Act. Although the decision in Obodzinsky does not prohibit a motion for summary judgment on a reference, the order sought on summary judgment must be consistent with the nature of the reference under subsection 18(1) of the Act. That condition was met herein. The motion for summary judgment was also brought on a timely basis, before the reference itself was set for hearing, as required by subsection 213(1) of the Rules.

The criteria for granting summary judgment generally were set out by this Court in Granville Shipping Co. v. Pegasus Lines Ltd. The moving party bears the legal onus of establishing the facts necessary to obtain summary judgment. When that onus is met, the responding party has the evidential burden of showing that there is a genuine issue for trial. Summary judgment should be allowed where the Court has evidence establishing the essential relevant facts such that proceeding to trial would add detail, but not significant additional evidence.

The phrase "knowingly concealing material circumstances", as used in section 10 of the Act, means that the Court must find that the person concerned concealed circumstances material to the decision, whether he knew or not that they were material, with the intent of misleading the decision-maker. Materiality is to be determined in light of the significance of the information not disclosed to the decision in question. As a matter of law, an untruth or a misleading answer which has the effect of foreclosing or averting further inquiries may be a misrepresentation within the meaning of the Act. The standard of proof to be applied in a reference under the Act is the civil standard of proof on a balance of probabilities. However the evidence must be scrutinized with greater care because of the seriousness of the allegations and the severe consequences of revocation of citizenship. More must be established than a technical transgression of the Act. Innocent misrepresentations are not to result in the revocation of citizenship.

There was a conflict of evidence concerning whether the defendant was asked whether he was under any kind of criminal investigation. This issue must be determined after the parties are cross-examined under oath before the trier of fact. A genuine issue exist as to whether the defendant lied to the Citizenship Judge so as to obtain his citizenship by false representation.

Whether the defendant was charged with an indictable offence on February 5, 1993 when he took the oath of citizenship and was granted citizenship is a material fact as a result of paragraph 22(1)(b) of the Act. The defendant admitted that he provided a false blood sample to avoid prosecution and to "clear himself" and that he committed the offence of attempting to obstruct the course of justice by providing false evidence. By knowingly providing a false blood sample for the purpose of avoiding criminal prosecution, the defendant foreclosed at that time further inquiry by police officers. He also foreclosed being charged with the indictable offense of sexual assault in December of 1992. The agreement between Crown counsel and the defendant's counsel not to charge the defendant until the DNA test results were received was made only as a result of the provision of the false blood sample by the defendant, which he gave only because he knew that it would not incriminate him. But for providing the false blood sample, the defendant would have been charged prior to February 5, 1993. The charging process, which is not as arcane as suggested by the defendant's counsel, is in most part a matter of law. The RCMP did have to authority to lay an information and thus to commence a criminal proceeding. On a balance of probabilities, the defendant provided a false blood sample to the RCMP. This constituted a false representation. He knowingly concealed the material circumstance that it was someone else's blood contained in a rubber tube inserted in his arm under his skin. Through the making of this false representation and the knowing concealment of a material circumstance, the defendant circumvented any further police inquiry which would likely have led to criminal charges and would have rendered him ineligible for citizenship. There was no genuine issue to be tried with respect to the existence of these facts or the legal conclusions flowing from them.

statutes and regulations judicially

considered

Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18, 22(1)(b).

Criminal Code, R.S.C., 1985, c. C-46, ss. 139(2), 246(b), 271 (as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 10), 504, 507 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 78; S.C. 1994, c. 44, s. 43; 2002, c. 13, s. 21).

Federal Court Rules, 1998, SOR/98-106, rr. 169(a),     213(1), 216(1),(3).

cases judicially considered

applied:

Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2003] 2 F.C. 657; (2002), 224 D.L.R. (4th) 158; 26 Imm. L.R. (3d) 1; 305 N.R. 238 (C.A.); Canada (Minister of Citizenship and Immigration ) v. Kawash, 2003 FCT 709; [2003] F.C.J. No. 918 (T.D.) (QL); ITV Technologies Inc. v. WIC Television Ltd. (2001), 11 C.P.R. (4th) 174 (F.C.A.); leave to appeal to S.C.C. refused, [2001] 2 S.C.R. ix; Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853; (1996), 111 F.T.R. 189 (T.D.); Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1; 14 Imm. L.R. (3d) 3 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Baumgartner (2001), 211 F.T.R. 197; 17 Imm. L.R. (3d) 85 (F.C.T.D.).

distinguished:

Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155; 21 Imm. L.R. (2d) 31 (F.C.T.D.).

considered:

Regina v. Southwick, Ex parte Gilbert Steel Ltd., [1967] 2 O.R. 428; [1968] 1 C.C.C. 356; (1967), 2 C.R.N.S. 46 (C.A.).

referred to:

F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology, Inc. (1999), 1 C.P.R. (4th) 88; 165 F.T.R. 74 (F.C.T.D.); Pawar v. Canada, [1999] 1 F.C. 158; (1998), 56 C.R.R. (2d) 318 (T.D.); affd (1999), 67 C.R.R. (2d) 284; 247 N.R. 271 (F.C.A.); leave to appeal to S.C.C. refused, [2000] 1 S.C.R. xvii; Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850; (1973), 36 D.L.R. (3d) 522; Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37; 47 Imm. L.R. (2d) 293 (F.C.T.D.).

authors cited

Salhany, Roger E. Canadian Criminal Procedure, 6th ed., looseleaf. Aurora, Ont.: Canada Law Book, 1994.

MOTION for summary judgment declaring that the defendant has obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Motion allowed.

appearances:

William B. Hardstaff and Glennys Bembridge for plaintiff.

Chris Elgin for defendant.

solicitors of record:

Deputy Attorney General of Canada for plaintiff.

Elgin, Cannon & Associates, Vancouver, for defendant.

The following are the reasons for order and order rendered in English by

[1]Dawson J.: By notice dated January 14, 2002 the Minister of Citizenship and Immigration (Minister) notified the defendant, Mr. Schneeberger, of the Minister's intention to make a report to the Governor in Council, pursuant to subsections 10(1) and 18(1) of the Citizenship Act, R.S.C., 1985, c. C-29 (Act). The notice alleges that the defendant suppressed facts between the time he applied for citizenship and the time it was granted which, if known, would have warranted denial of his citizenship. If the Governor in Council becomes satisfied of this, the defendant would cease to be a Canadian citizen. In consequence, as was his right, the defendant requested that the matter be referred to this Court. The Minister then commenced this action by statement of claim and the defendant filed a statement of defence. The Minister now moves for summary judgment declaring that the defendant has obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

BACKGROUND FACTS

[2]The following facts are admitted in the pleadings in this action, or in the defendant's affidavit filed in opposition to the motion for summary judgment.

[3]The defendant acquired permanent resident status in Canada on November 22, 1989 and on May 22, 1992 applied for Canadian citizenship.

[4]On October 31, 1992, the defendant committed two criminal offences: administering a stupefying or overpowering drug with the intent to assist himself to commit the indictable offence of sexual assault, contrary to paragraph 246(b) of the Criminal Code [R.S.C., 1985, c. C-46]; and sexual assault, contrary to section 271 [as am. by R.S.C., 1985 (3rd Supp.), c. 19, s. 10] of the Criminal Code.

[5]On November 6, 1992, the defendant became aware that the victim of the sexual assault had made a complaint to the police. The defendant was interviewed by the RCMP on November 9, 1992. The defendant denied any involvement in the offences and attempted, in his words, to "clear himself" of the allegations and to avoid prosecution by providing a false blood sample to the police. He did so by surgically inserting into his arm a tube of someone else's blood. The false blood sample was taken from the tube on November 16, 1992. On January 25, 1993, the police received a negative DNA test result on the basis of a comparison of the false blood sample with a semen sample taken from the victim of the sexual assault.

[6]On February 5, 1993, a Citizenship judge approved the defendant's application for citizenship. The defendant took the oath of citizenship and became a Canadian citizen on that date.

[7]In January of 1998, the defendant was charged with a number of criminal offences, including the sexual assault of October 31, 1992, administering the stupefying or overpowering drug on October 31, 1992 and willfully attempting to obstruct the course of justice over the period from November 15, 1992 to August 7, 1993 by providing false evidence, being blood samples, to a peace officer investigating the complaint of sexual assault, contrary to subsection 139(2) of the Criminal Code. The defendant was found guilty of those offences on November 25, 1999.

THE MINISTER'S ALLEGATIONS IN THIS ACTION

[8]The relevant sections of the Act are sections 10, 18 and paragraph 22(1)(b) [as am. by S.C. 1992, c. 47, s. 67]. They are set out in Annex A to these reasons.

[9]At all material times, paragraph 22(1)(b) of the Act provided that a person shall not be granted citizenship or take the oath of citizenship while the person is charged with an indictable offence under any Act of Parliament. The offences of sexual assault, and administering a stupefying or overpowering drug to assist in the commission of an indictable offence, are both indictable offences.

[10]The Minister asserts that during his interview with the Citizenship Judge, before the approval of his application for citizenship, the defendant was asked by the Citizenship Judge whether he had been under a past or present criminal investigation. The Minister further asserts that the defendant falsely represented that he was not under a criminal investigation. The Minister therefore says that the defendant obtained his citizenship by lying to the Citizenship Judge and by knowingly concealing material circumstances from both the Citizenship Judge and from the RCMP. The Minister argues that on the uncontradicted evidence before the Court, the facts do not raise a genuine issue for trial within the meaning of subsection 216(1) of the Federal Court Rules, 1998 [SOR/98-106] (Rules). Alternatively, the Minister argues that if there is a genuine issue of law or a genuine issue with respect to a defence, the Court should find on the whole of the uncontradicted evidence the facts necessary to decide the questions of fact and law and grant summary judgment pursuant to subsection 216(3) of the Rules.

THE AVAILABILITY OF SUMMARY JUDGMENT IN CITIZENSHIP REVOCATION PROCEEDINGS

[11]Prior to the hearing of this motion, the attention of the parties was drawn to the decision of the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2003] 2 F.C. 657. Counsel were requested to be prepared to argue whether summary judgment is available in reference proceedings commenced pursuant to section 18 of the Act.

[12]In response, the defendant argued that in Obodzinsky, the Federal Court of Appeal held that only the judge appointed to hear the reference could determine the issues raised by the reference, and that by its nature a reference is an investigative proceeding that should not be determined summarily.

[13]I have been persuaded by the submissions advanced on the Minister's behalf that in Obodzinsky , the Federal Court of Appeal did not find that summary judgment would never be available in the context of a revocation proceeding. In my view, the decision in Obodzinsky turned upon the fact that the motion for summary judgment was not heard by the judge assigned to the reference (notwithstanding that the reference was about to begin and a judge had been assigned to hear the reference), and the fact that, while on a reference the judge is to reach a conclusion upon factual issues, the judgment granted on a summary basis left unresolved the question of fact which was the subject-matter of the reference. Thus, the Court of Appeal did not conclude that summary judgment would never be available in respect of a reference under the Act. Indeed, at paragraph 17 of the reasons the Court assumed for purposes of discussion that recourse to summary judgment is not prohibited.

[14]This conclusion is consistent with the fact that paragraph 169(a) of the Rules makes all of the provisions of Part 4 of the Rules applicable to references under section 18 of the Act. Part 4 of the Rules includes the rules applicable to summary judgment. It would not have been difficult to make Part 4 of the Rules, except for the summary judgment rules, applicable to those references if that had been the intent.

[15]This conclusion that summary judgment is available on a reference under the Act is also supported by the recent decision of Mr. Justice Hugessen in Canada (Minister of Citizenship and Immigration) v. Kawash, 2003 FCT 709; [2003] F.C.J. No. 918 (T.D.) (QL) where summary judgment was granted in respect of such a reference.

[16]While I have concluded that the decision in Obodzinsky does not prohibit a motion for summary judgment on a reference, I take the decision to sound a cautionary note. At the least, the order sought on summary judgment must be consistent with the nature of the reference under subsection 18(1). In the present case, I find that condition to be met. The relief sought on the motion for summary judgment is a declaration on the subject-matter of the reference. The motion for summary judgment has also been brought on a timely basis, before the reference itself has been set for hearing, as required by subsection 213(1) of the Rules.

THE CRITERIA FOR GRANTING SUMMARY JUDGMENT GENERALLY

[17]The Federal Court of Appeal in ITV Technologies Inc. v. WIC Television Ltd. (2001), 11 C.P.R. (4th) 174, leave to appeal dismissed, [2001] 2 S.C.R. ix affirmed that the principles which apply on a motion for summary judgment are those set out in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.). Those principles, as relevant to this motion, are:

1. The purpose of summary judgment is to allow the Court to summarily dispense with cases which ought not to proceed to trial because there is no genuine issue to be tried.

2. There is no determinative test. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial.

3. Each case should be interpreted in reference to its own contextual framework.

4. This Court may determine questions of fact and law on a motion for summary judgment if this can be done on the material before the Court.

5. On the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found, or if it would be unjust to do so.

6. In the case of a serious issue with respect to credibility, the case should go to trial because the witnesses should be cross-examined before the trial judge. The mere existence of apparent conflict in the evidence does not preclude summary judgment. The Court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved.

[18]The moving party bears the legal onus of establishing the facts necessary to obtain summary judgment. However, when that onus is met, the responding party has the evidential burden of showing that there is a genuine issue for trial. Both parties must put their best foot forward to enable the motions judge to determine whether there is an issue that should go to trial. See: F. Von Langsdorff Licensing Ltd. v. S.F. Concrete Technology, Inc. (1999), 1 C.P.R. (4th) 88 (F.C.T.D.), at paragraph 12.

[19]Summary judgment should be allowed where the Court has evidence establishing the essential relevant facts such that proceeding to trial would add detail, but not significant additional evidence. See: Pawar v. Canada, [1999] 1 F.C. 158 (T.D.); affirmed (1999), 67 C.R.R. (2d) 284 (F.C.A.); leave to appeal refused [2000] 1 S.C.R. xvii.

WHAT IS REQUIRED AT LAW IN ORDER TO FOUND A DECLARATION UNDER PARAGRAPH 18(1)(b) OF THE ACT?

[20]In Canada (Minister of Citizenship and Immigration) v. Odynsky (2001), 196 F.T.R. 1 (F.C.T.D.) Mr. Justice MacKay considered the meaning of the phrase "knowingly concealing material ci rcumstances" as used in section 10 of the Act. He concluded, at paragraph 159, that the phrase requires that:

. . . the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker.

[21]Materiality is to be determined in light of the significance of the information not disclosed to the decision in question.

[22]Mr. Justice MacKay further considered, relying upon the decision of the Supreme Court of Canada in Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, that a misrepresentation of a material fact includes an untruth, the withholding of truthful information, or a misleading answer which has the effect of foreclosing or averting further inquiries.

[23]Mr. Justice McKeown also applied Brooks, supra in the context of a citizenship revocation case in Canada (Minister of Citizenship and Immigration) v. Baumgartner (2001), 211 F.T.R. 197 (F.C.T.D.). Mr. Justice McKeown wrote as follows at paragraphs 138 through 140:

In M.M.I. v. Brooks, [1974] S.C.R. 850, Laskin J., writing for the Court, held that untruths or misleading answers that in effect foreclose an avenue of inquiry may be material misrepresentations, even when the further inquiry might not have discovered any independent ground of deportation. Brooks, supra involved allegedly false answers given by the applicant on his application for admission into Canada. At 865-73, Laskin J. stated:

. . . An answer may be both false and misleading but the statute does not demand this combination. It may be the one or the other and still fall within the prohibition. Again, since criminal punishment is not the object of the enforcement of immigration and deportation policies by means of special inquiries, I cannot be persuaded that intentional or wilful deception would be read in as a prerequisite. . .

Lest there be any doubt on the matter as a result of the Board's reasons, I would repudiate any contention or conclusion that materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading information may fall short of this and yet have been an inducing factor in admission. Evidence, as was given in the present case, that certain incorrect answers would have had no influence in the admission of a person is, of course, relevant to materiality. But also relevant is whether the untruths or the misleading answers had the effect of foreclosing or averting further inquiries, even if those inquiries might not have turned up any independent ground of deportation.

The Minister brought to the Court's attention various cases that followed the principle enunciated in Brooks, supra, including the decision in Hilario v. M.M.I., [1978] 1 F.C. 697 (T.D.); Khamsei v. M.E.I., [1981] 1 F.C. 222 (F.C.A.); Juayong v. M.E.I. (1988), 99 N.R. 78 (F.C.A.); Okwe v. M.E.I. (1991), 136 N.R. 261 (F.C.A.); and Mohammed v. Canada (M.C.I.), [1997] F.C.J. No. 605 (Q.L.). In not admitting that he was a concentration camp guard during the war, the applicant effectively prevented any questioning by the immigration officials (both the Immigration Officer and the Visa Control Officer) regarding the particulars of that service. Thus, it would have been impossible for the authorities to question him on what acts he had committed as a concentration camp guard, some of which may have rendered him inadmissible as an "offender" or "major offender" under the criteria established by the Security Panel at its May 15, 1952 meeting. I note that the Defendant submits that there was no duty of candour placed on Mr. Baumgartner at the time of his immigration interview, as per the decision of this Court in Secretary of State v. Luitjens (1991), 46 F.T.R. 267. I agree with this submission, but find that it is irrelevant in the present case, as Mr. Baumgartner himself testified that he was indeed asked about his military involvement during his immigration interviews in March, 1953.

The Defendant submits at page 24, paragraph 50 of the Defendant's written submissions that:

It cannot be inferred that the mere entry of Mr. Baumgartner into Canada was a result of a fraud unless the Court is satisfied that he would have necessarily been refused entry had his true situation been known which, in turn requires proof that the applicable rejection criteria, whatever that may have been, would have required the rejection of the Defendant.

However, as I already stated, it is not necessary to establish that Mr. Baumgartner would have been refused entry due to misrepresentation, but only that he withheld a material piece of information and thereby may have made it impossible for the Immigration Officers and the security officer to pursue an avenue of inquiry that may have revealed that Mr. Baumgartner was indeed inadmissible according to the Security Panel's May, 1952 policy and the corresponding "Reasons for Rejection" criteria. As the case law cited above demonstrates, and contrary to the submissions of the Defendant, the Minister is not required to show in her pleadings that specified misrepresentations resulted in the landing of Mr. Baumgartner. Mr. Baumgartner, in not disclosing that he served as a concentration camp guard, circumvented an inquiry regarding the specific acts that he may have committed and the nature of his service in that capacity. Such inquiry may have uncovered information that would have rendered Mr. Baumgartner inadmissible. Thus, when Mr. Baumgartner failed to disclose his role as a concentration camp guard when he was asked about his military service during his March, 1953 interviews with Canadian officials, he committed a material misrepresentation which lead to his becoming landed in Canada and, later, to his obtaining Canadian Citizenship. [Underlining added.]

[24]Thus, as a matter of law, an untruth or a misleading answer which has the effect of foreclosing or averting further inquiries may be a misrepresentation within the meaning of the Act.

[25]The standard of proof to be applied in a reference under the Act is the civil standard of proof on a balance of probabilities. However, the evidence must be scrutinized with greater care because of the seriousness of the allegations and the severe consequences of revocation of citizenship. See: Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37 (F.C.T.D.), at paragraph 10.

[26]More must be established than a technical transgression of the Act. Innocent misrepresentations are not to result in the revocation of citizenship. See: Canada (Minister of Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155 (F.C.T.D.).

APPLICATION OF THESE PRINCIPLES TO THE CASE AT BAR

(i) The alleged misrepresentation to the Citizenship Judge

[27]The Citizenship Judge who allowed the defendant's application for citizenship swore an affidavit in this proceeding in which she waives any claim to privilege that she may have in her capacity as a former Citizenship Judge. She swears to having a clear recollection of the defendant's interview. She says that, in accordance with her usual practice, she asked the defendant whether he had been under a past or present criminal investigation. She swears that her exact words were "have you ever in the past or are you presently under any kind of criminal invest igation past or present?" She swears that the defendant answered "no" to that question. The Citizenship Judge further swears that if the defendant had answered "yes" to the question, she would not have allowed him to sign the attestation or to take the oat h of citizenship. She would have inquired as to what kind of offence was being investigated, since being charged with an indictable offence would have prohibited the defendant from taking the oath and becoming a citizen.

[28]As noted above, the defendant has also sworn an affidavit in this proceeding. In his affidavit the defendant takes significant issue with the Citizenship Judge's version of events. He swears that the Citizenship Judge did ask him if he "had any problems" with the RCMP, an d he asked her to clarify what she meant by that. She clarified the question to mean "have you been charged with any criminal offence?". He told her that he had not been charged with an offence, which was, at the time, true. The defendant denies being aske d whether he was presently under any kind of criminal investigation.

[29]Neither deponent was cross-examined on their affidavit.

[30]On the Minister's behalf, it is asserted that despite this conflict in the evidence, there is no genuine issue on this point because the defendant is not credible. He has, the Minister argues, in the past given false evidence under oath. In consequence, no serious issue with respect to credibility is said to exist.

[31]I respectfully disagree. I have taken the requisite "hard look" at the conflicting affidavits and am of the view that if this issue must be determined, that determination must occur after the parties are cross-examined under oath before the trier of fact. In my view, a genuine issue exists as to whether the defendant lied to the Citizenship Judge so as to obtain his citizenship by false representation.

(ii) The alleged misrepresentation or knowing concealment to the RCMP

[32]As a result of paragraph 22(1)(b) of the Act, whether the defendant was charged with an indictable offence on February 5, 1993 when he took the oath of citizenship and was granted citizenship, is a material fact.

[33]Three months before that date, on November 6, 1992, the defendant became aware of the allegations made against him by the victim of the sexual assault he had committed. The defendant's evidence of what he did as a result of his knowledge of the complaint and investigation is important. The def endant, in his affidavit filed in opposition to this motion, swears that:

5. I was first made aware of the allegations against me on November 6, 1992. I was interviewed by the RCMP on November 9, 1992, in the presence of my counsel, Brad Hunter. At the time, I denied my involvement in the offences. I did not want to be convicted of the offences and I was not willing to accept responsibility for the offences at that time. I now accept responsibility for my actions.

6. I also attempted to clear myself of the allegations by providing a false blood sample to the police. This was an offence of attempting to obstruct the course of justice by providing false evidence contrary to Section 139(2) of the Criminal Code.

7. My goal at the time was to avoid prosecution for the offences that occurred on October 31, 1992. I would not have provided a sample of my own blood at that time because I knew that it would incriminate me.

[34]The defendant therefore admits to providing a false blood sample to avoid prosecution and to "clear himself". It is also admitted by the defendant that he committed the offence of attempting to obstruct the course of justice by providing false evidence.

[35]Sgt. Haanstra of the RCMP also filed an affidavit in support of the Minister's motion for summary judgment. In it, he swears that he was the lead investigator into the criminal charges that led to the defendant's criminal conviction. Sgt. Haanstra swears that:

5. On November 6, 1992 RCMP Cst. Pattyson and I first contacted the Defendant. We met with him and conducted a short interview regarding the allegations made by C.F. The Defendant asked to speak to his lawyer and the interview concluded. The Defendant knew or ought to have known that as of November 6, 1992 he was the subject of a criminal investigation.

6. On the afternoon of November 6, 1992 I am advised and believe that then counsel for the defendant, Brad Hunter, contacted Cst. Pattyson and arranged to interview the Defendant on November 9, 1992. I attended the interview with the Defendant and Mr. Hunter. The Defendant gave a written statement denying his involvement. When that was done, I asked the Defendant if he was prepared to provide blood and hair samples. Mr. Hunter advised that they would respond to that request at a later date.

7. On November 11, 1992 I am advised and believe that Mr. Hunter contacted Cst. Pattyson. Mr. Hunter said that if the Defendant agreed to provide a blood sample, he and the Defendant would want to be given some of the semen sample obtained from C.F. in order to conduct their own DNA test using independent experts.

8. On November 16, 1992, I am advised and believe that Mr. Hunter telephoned Cst. Bevans, another Kipling Detachment RCMP member. Mr. Hunter said that the Defendant was conditionally prepared to provide a blood sample that day.

9. I had concluded after my interview with the Defendant on November 9, 1992 that there were reasonable and probable grounds with which to charge the defendant for sexual assault pursuant to section 271 of the Criminal Code. On December 21, 1992 I contacted Steve Connelly, Regional Crown counsel in Regina, to see if he had any objections about my doing so. He said that he had already told the Defendant's counsel that no charges would be laid until after DNA test results by an independant laboratory had been received.

    . . .

11. I am advised and believe that on November 17, 1992 some of the Defendant's false blood sample, along with some of the semen sample taken from C.F., was forwarded to the RCMP Crime lab in Regina for DNA analysis. I am further advised and believe that on December 16, 1992 the Crime lab in Regina forwarded some of both samples to an independant lab in Greensboro, North Carolina as the Defendant's then counsel had requested.

12. On January 18, 1993 the Defendant's then counsel received a forensic case report of the DNA test dated January 15, 1993 from the independent lab. On January 25, 1993 we received a copy [of] the same report at the Kipling Detachment. It showed that the false blood sample taken from the Defendant on November 16, 1992 did not match the DNA sample of semen taken from C.F. Attached and marked as Exhibit "C" to this affidavit is a copy of the forensic case test report.

13. On June 15, 1993 the Kipling RCMP detachment also received confirmation from the RCMP crime lab in Ottawa that there was no DNA match from the false blood sample the Defendant gave on November 16, 1992.

[36]Sgt. Haanstra was not cross-examined on that evidence, and his evidence is not contradicted by any other evidence.

[37]I find on this evidence, as a fact, that by knowingly providing a false blood sample for the purpose of avoiding criminal prosecution, the defendant foreclosed at that time further inquiry by police officers. He also foreclosed being charged with the indictable offence of sexual assault in December of 1992. Sgt. Haanstra's evidence is uncontradicted that he had concluded that there were reasonable and probable grounds with which to charge the defendant. Sgt. Haanstra was dissuaded from doing so on December 21, 1992 because the defendant had provided a blood sample and Crown counsel had agreed with the defendant's counsel that no charge would be laid until the DNA test results were received. The defendant only agreed to provide a blood sample for testing because he knew it would not incriminate him. But for providing the false blood sample, the defendant would have been charged prior to February 5, 1993.

[38]On the defendant's behalf it is argued that a serious issue exists as to whether he would h ave been charged before February 5, 1993 because he argues that Sgt. Haanstra was not responsible for deciding if, or when, charges would be laid. Responsibility for that decision is said to have rested with regional Crown counsel.

[39]In my view, there is no evidentiary foundation for this argument. There is no evidence that Sgt. Haanstra required the consent of Crown counsel to charge the defendant. The evidence is only that Sgt. Haanstra called Crown counsel to see if there was any objection to a charge being laid. The only evidence of a basis for objection on the part of Crown counsel is the agreement that he made with the defendant's counsel not to charge the defendant until the DNA test results were received. This agreement was made only as a result of the provision of the false blood sample by the defendant, which the defendant gave only because he knew it would not incriminate him.

[40]The defendant also argues that a peace officer has no authority, as a matter of law, to charge a person. It is said that there is a "huge hole" in the evidence with respect to Sgt. Haanstra's authority, and it is not clear on the evidence what process leads to a charge. Further, it is said that the Criminal Code does not define what is a "ch arge". Reliance is also placed upon section 507 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 78; S.C. 1994, c. 44, s. 43; 2002, c. 13, s. 21] of the Criminal Code .

[41]With respect, I am not satisfied that the charging process is as arcane as suggested on the defendant's behalf. Further, it is in largest part a matter of law.

[42]In Salhany on Canadian Criminal Procedure (6th edition) (looseleaf), at paragraph 3.680 the learned author writes:

In Canada, the prosecution of someone accused of a criminal offence is generally initiated by the laying of an information before a justice of the peace. Anyone who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before the justice. The expression "to lay an information" means essentially no more that to present an accusation in writing before a justice of the peace (i.e., to lay the information before him) for his signature. [Footnotes and citations omitted.]

[43]Section 504 of the Criminal Code is as follows:

504. Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides, and that the person

(i) is or is believed to be, or

(ii) resides or is believed to reside,

within the territorial jurisdiction of the justice;

(b) that the person, wherever he may be, has committed an indictable offence within the territorial jurisdiction of the justice;

(c) that the person has, anywhere, unlawfully received property that was unlawfully obtained within the territorial jurisdiction of the justice; or

(d) that the person has in his possession stolen property within the territorial jurisdiction of the justice.

[44]The Ontario Court of Appeal has held with respect to the predecessor of section 504 of the Criminal Code that:

I am of the view that in s. 439 [the predecessor to section 504] the word "receive" means that the Justice shall not reject a complaint which is in writing and which complies with the conditions set out in that section. The complaint or details of the alleged offence are reduced to writing and when sworn to by the Justice of the Peace constitute an information. On the swearing of the written complaint the information is "laid" and becomes the first step or commencement of criminal proceedings.

See: Regina v. Southwick, Ex parte Gilbert Steel Ltd., [1967] 2 O.R. 428 (C.A.), at page 430.

[45]In my view, this puts beyond doubt the ability of Sgt. Haanstra to lay an information, and thus commence criminal proceeding in respect of an indictable offence.

[46]To the extent section 507 of the Criminal Code is relied upon, this section deals with a subsequent step in the prosecution with respect to either issuing a summons or a warrant for arrest. It does not limit the right of any person to lay an information in writing.

[47]Finally, the defendant relies upon the decision of this Court in Minhas, supra to argue that the Minister must establish that the defendant misrepresented pertinent facts with the intent to deceive and to obtain his citizenship on the basis of those false representations. In my view, Minhas is distinguishable. There is nothing in the reasons of the Court to show that in that case Mr. Minhas did anything to deceive authorities. He simply did not volunteer that he had been charged with an offence. This is distinguishable from the present case because of the evidence that the defendant actively deceived authorities by providing a false blood sample to thwart the investigation and charging process.

[48]For these reasons, I am satisfied, on a balance of probabilities, that the defendant provided a false blood sample to the RCMP. This constituted the making of a false representation to, and the knowing concealment of a material circumstance from, the RCMP. The false representation was that the blood sample was that of the defendant. The defendant knowingly concealed the material circumstance that it was someone else's blood contained in a rubber tube inserted in his arm under his skin. Through the making of this false representation and/or the knowing concealment of a material circumstance, the defendant circumvented any further police inquiry which would likely have led to criminal charges. This, in turn, would have rendered him ineligible for citizenship. Through the making of the false representation and/or the knowing concealment he was able to tell the Citizenship Judge that he had not been charged with an offence.

[49]There is no genuine issue to be tried with respect to the existence of these facts or the legal conclusions which flow from those facts. The motion for summary judgment will therefore be allowed on this basis.

[50]Counsel for the Minister did not strenuously assert a claim for costs. In circumstances where this is one of the first cases where summary judgment has been sought in a citizenship revocation proceeding, in the exercise of my discretion I determine that each party should bear their own costs. There will be no order as to costs.

    ORDER

[51]IT IS HEREBY ORDERED THAT:

The motion for summary judgment is granted. It is declared that the defendant obtained his Canadian citizenship by false representation or by knowingly concealing a material circumstance from the RCMP.

    ANNEX A

Sections 10, 18 and paragraph 22(1)(b) of the Citizenship Act:

10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,

(a) the person ceases to be a citizen, or

(b) the renunciation of citizenship by the person shall be deemed to have had no effect,

as of such date as may be fixed by order of the Governor in Council with respect thereto.

(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.

    . . .

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.

(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.

(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

    . . .

22. (1) Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship

    . . .

(b) while the person is charged with, on trial for or subject to or a party to an appeal relating to an offence under subsection 29(2) or (3) or an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act.