T-2691-87
The Secretary of State (Applicant)
v.
bannis Delezos (Respondent)
INDEXED AS: CANADA (SECRETARY OF STATE) V. DELEZOS
Trial Division, Muldoon J.—Toronto, Septem-
ber 1; Ottawa, September 7, 1988.
Citizenship — Application for determination whether citi
zenship obtained fraudulently — Respondent pleaded guilty
and convicted of uttering forged document in citizenship
application, contrary to s. 326(1)(b) of Criminal Code —
Whether present Citizenship Act proceedings unconstitutional
as second punishment for same offence — Immigration Act
not code of law prohibiting prosecution under other legislation
— Proceedings under Citizenship Act, ss. 9 and 17 legitimate
as meeting Parliament's legislative intent.
Constitutional law — Charter of Rights — Criminal process
— Whether proceedings under Citizenship Act following
Criminal Code conviction unconstitutional as contrary to s.
11(h) of Charter — Respondent not "person charged with an
offence" within meaning of s. 11 — Present proceedings civil in
nature — Court's findings have no penal consequences —
Admission of respondent's plea and conviction pursuant to
Criminal Code does not violate Charter rights as proceedings
do not constitute trial of offence of which respondent previous
ly convicted.
This reference, made by the Minister pursuant to subsection
17(2) of the Citizenship Act, was a request for a determination
whether the respondent had obtained Canadian citizenship
fraudulently, contrary to section 9 of the Act. In 1984, the
respondent pleaded guilty and was convicted of uttering a
forged document in a citizenship application. Counsel submits•
that the Crown's election to pursue the matter under the
Criminal Code, as opposed to charging the respondent with
offences under the Citizenship Act prohibited the Crown from
seeking further sanctions. It was further contended that these
proceedings were unconstitutional as contrary to paragraph
11(h) of the Charter. It was argued that the respondent had
already suffered the full weight of the law and that any further
proceedings could be met with the defence of double jeopardy.
Held, the respondent obtained citizenship by false represen
tations contrary to subsection 17(1) of the Citizenship Act.
Counsel's contention, that the Immigration Act constitutes a
"code" which prohibits the Crown from pursuing a grievance
under any other Act, had to be rejected. The proceedings
invoked by the Crown were legitimate as Parliament's intent
was specifically aimed at the respondent's illegal activities.
The respondent was not a "person charged with an offence"
within the meaning of section 11 of the Charter. The proceed
ings were civil in nature and the respondent stands in no
jeopardy of a penal consequence as a result of the agreed
finding that he had pleaded guilty in District Court to a charge
under the Criminal Code. The reception of proof of the
respondent's 1984 plea and conviction did not contravene para
graph 11(h) of the Charter as this proceeding did not constitute
a trial for the offence of which the respondent had been
convicted.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 12(2).
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 11(h).
Citizenship Act, S.C. 1974-75-76, c. 108, ss. 9, 17(1)(b),
(2).
Criminal Code, R.S.C. 1970, c. C-34, s. 326(1)(b).
Immigration Act, 1976, S.C. 1976-77, c. 52.
Royal Canadian Mounted Police Act, R.S.C. 1970, c.
R-9.
CASES JUDICIALLY CONSIDERED
APPLIED:
English v. Richmond and Pulver, [1956] S.C.R. 383.
DISTINGUISHED:
R. v. Wigglesworth, [1987] 2 S.C.R. 541; 37 C.C.C. (3d)
385.
AUTHORS CITED
Sopinka, John and Lederman, Sidney N. The Law of
Evidence in Civil Cases, Toronto: Butterworths, 1974.
COUNSEL:
Roslyn J. Levine for applicant.
Richard R. Boraks for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Richard R. Boraks, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
MULDOON J.: This proceeding is a reference
made by the applicant Minister to the Court,
pursuant to subsection 17(2) of the Citizenship
Act, S.C. 1974-75-76, c. 108, requesting that the
Court decide whether or not the respondent has
obtained Canadian citizenship fraudulently, by
false representation, or fraud, or by knowingly
concealing material circumstances as denounced in
section 9 of the Act. The reference was heard at
Toronto, on September 1, 1988.
The strictly exclusive and virtually codified
provisions of the Act upon which this proceeding is
based run thus:
9. (1) Subject to section 17 but notwithstanding any other
section of this Act, where the Governor in Council, upon 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 ma
terial circumstances if
(a) he was lawfully admitted to Canada for permanent
residence by false representation or fraud or by knowingly
concealing material circumstances; and
(b) he subsequently obtained citizenship because he had been
admitted to Canada for permanent residence. [No emphasis
in statutory text.]
17. (1) The Minister shall not make a report under section 9
unless he 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 given by means of a registered
letter addressed to the latest known address of such person.
(3) A decision of the Court made under subsection (1) is
final and conclusive and, notwithstanding any other Act of
Parliament, no appeal lies therefrom. [My emphasis.]
In this matter, by means of a Notice of Revoca
tion of Citizenship dated July 21, 1987 (exhibit
"1" to the Notice of Reference), the Minister
notified the respondent that the Secretary of State
intends to make to the Governor in Council a
report within the meaning of subsection 9(1) of the
Act. Exhibit "2" to the Notice of Reference is a
copy of the respondent's request, through and by
his solicitor asking that the Minister refer the
respondent's case to this Court. The Minister has
filed a summary of facts and evidence as well as a
list of documents and witnesses, pursuant to this
Court's Rule 920.
In the meanwhile, the respective counsel for the
parties conversed together, and then tendered as
evidence at the hearing of this case an agreed
statement of facts, now exhibit 1. The respondent's
counsel agreed to the tendering of the applicant's
book of documents, now exhibit 2, containing per
tinent tabbed documents received as exhibits 2(1)
through 2(16). The agreed tendering and receipt
of exhibits 1 and 2 made it possible to proceed
directly to oral arguments.
Here is the substantive agreed text of exhibit 1:
1. The respondent entered Canada as a visitor on July 25,
1973. He was authorized to remain in Canada until July 24,
1974.
2. The respondent had a false immigration stamp placed in
his Greek passport purporting to show that he had been granted
landed immigrant status on September 24, 1977.
3. The respondent applied for citizenship on February 18,
1982, using a forged letter dated November 18, 1981, purport
edly signed by G.C. Alldridge, Acting Manager, Canada Immi
gration Centre, 150 Kent Street, 9th Floor, Ottawa, Ontario,
which letter stated that the respondent had received "landed
immigrant" status on September 24, 1977.
4. The forged letter and passport stamp were obtained
through a travel agent/immigration consultant who was operat
ing in the Greek community in Toronto at that time. The agent
held out to the respondent and others that as a consultant he
had a relationship with immigration and other officials in the
public service. The agent was subsequently convicted for pro
viding false immigration documents to the respondent and
others in the Greek community.
5. On the application for citizenship, the respondent falsely
stated that he had arrived in Montreal on September 24, 1977,
and that he had received landed immigrant status on that date.
6. The respondent's application for citizenship was accepted
on the basis of the false documents tendered and was approved
by a citizenship judge on May 12, 1982. The respondent was
granted Canadian citizenship after the oath or affirmation of
citizenship was made, before a citizenship judge, on June 29,
1982. The respondent received Canadian citizenship certificate
no. 3216532.
7. On March 20, 1984 the respondent pleaded guilty before
and was convicted by a judge of the District Court in the
Province of Ontario, on a charge that he did utter a forged
document in his application for Canadian Citizenship, to wit: a
letter from Employment and Immigration Canada and Greek
Passport number X305524 showing the holder thereof to be a
Canadian Landed Immigrant, by causing or attempting to
cause them to be used, dealt with or acted upon by some person
or persons as if they were genuine, contrary to s. 326(1)(b) of
the Criminal Code of Canada.
8. The respondent has, therefore, obtained Canadian citizen
ship on the basis of false representations made in his applica
tion for Canadian citizenship and on the basis of fraudulent
documents.
The documents copied in exhibit 2 amply illus
trate and give credence to those agreed facts stated
in exhibit 1. The two exhibits appear to provide the
peremptory basis for the Court's decision "that the
person [the respondent] has obtained ... citizen
ship under this Act by false representation or
fraud or by knowingly concealing material circum
stances ...",in the very words of subsection 9(1)
and paragraph 17(1)(b) of the Citizenship Act.
However, the respondent's counsel argues that,
notwithstanding the foregoing possible basis of
decision, this proceeding is unconstitutional.
The fundamental focus of the respondent's
counsel's argument resides in paragraph 11(h) of
the Canadian Charter of Rights and Freedoms,
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.).] That provision states:
11. Any person charged with an offence has the right
(h ) if finally acquitted of the offence, not to be tried for it
again and, if finally found guilty and punished for the
offence, not to be tried or punished for it again;
Counsel correctly asserts that the purpose of this
constitutional imperative is to forbid the tyrannical
abuse of State power, and to do so by exacting
finality in each and every prosecution for an
offence.
The respondent, according to his counsel's argu
ment was finally convicted, on a guilty plea, of the
offence of uttering a forged document in his
application for citizenship pursuant to paragraph
326(1)(b) of the Criminal Code [R.S.C. 1970, c.
C-34], as the parties agree in paragraph 7 of
exhibit 1. The Crown elected to bring upon the
respondent the full weight and force of the penal
law by proceeding against him under the Criminal
Code, instead of charging the respondent with any
of the offences described in the Citizenship Act.
Now, again, counsel argues, the Crown in pursuing
revocation of the citizenship granted to the
respondent in June, 1982, brings upon the respon
dent the full weight and force of the law in these
proceedings by trying him again on the same
offence and by seeking to have him punished by
revocation of citizenship. Counsel argues that such
revocation is an equally grave consequence as
incarceration, if not a worse one.
In the course of argument the respondent's
counsel suggested that it was improper of the
Crown to switch the areas of its grievances with
the respondent from the Criminal Code to the
Immigration Act, 1976 [S.C. 1976-77, c. 52]. That
is so, because, he urged, the whole immigration
statute, not just sections 9 and 17, is a "code"
whose integrity ought not to be fragmented by the
sort of prosecutorial behaviour exhibited by the
Crown toward the respondent. If, as counsel con
tends, the Immigration Act be truly a code of law,
it is not a seamless one. Counsel evidently forgot
the emphasized expression near the beginning of
section 9 above recited: "Subject to section 17 but
notwithstanding any other section of this Act,
.". The proceedings invoked by the Crown are
obviously quite legitimate according to the legisla
tor's expressed intent. Indeed the respondent's ille
gal activities appear to be the very locus classicus
of Parliament's legislative intent, apart from con
sideration of the respondent's counsel's argument
on the effect of the Charter.
In support of this argument, counsel for the
respondent relies on the majority decision of the
Supreme Court of Canada expressed by Madam
Justice Wilson in R. v. Wigglesworth, [1987] 2
S.C.R. 541; 37 C.C.C. (3d) 385. The factual
situation in the Wigglesworth case, as the appli
cant's counsel submitted, is entirely different from
that in this present proceeding. The difference may
be perceived merely upon answering Madam Jus
tice Wilson's basic question [at p. 551 S.C.R.]:
As mentioned above, the first question to be considered is
whether the appellant has been "charged with an offence"
within the meaning of the opening words of s. 11.
In Wigglesworth that question related to the major
service offence of which the appellant was convict
ed by a service tribunal under the Royal Canadian
Mounted Police Act, R.S.C. 1970, c. R-9, prior to
his facing an assault charge under the Criminal
Code. Here there is no doubt in the present case
that the respondent was indeed a "person charged
with an offence" within the meaning of section 11
of the Charter when he was convicted of uttering a
forged document, by a judge of the District Court
of Ontario, on March 20, 1984. Equally without
doubt is that the respondent is not charged with
that offence, or even any offence in these
proceedings.
The respondent is not being tried again for that
offence here in this Court. Rather, at the respon
dent's own request pursuant to paragraph 17(1)(b)
of the Citizenship Act, the applicant instituted this
proceeding in which to ask the Court to find, inter
alia, and as the parties in fact agree, that the
respondent pleaded "guilty" to that offence. That
plea means that he thereby admitted all the
ingredients of that offence in March, 1984. This
Court does not purport to try him again. He stands
in no jeopardy of any penal consequence whatever
as a consequence of the agreed finding. This Court
will not impose any punishment upon the respon
dent. The importance of the plea and conviction is
that they provide an essential element in the deci
sion of whether the respondent obtained citizen
ship by false representation or fraud or by know
ingly concealing material circumstances. This
enquiry is entirely civil in nature; it is not a
criminal law proceeding.
For brevity's sake here are two majority pas
sages from the accurate headnote to English v.
Richmond and Pulver, [1956] S.C.R. 383, at page
384:
Per Kerwin C.J. and Taschereau J.: ...the evidence of the plea
of guilty was inadmissible. The contention that the plea was
inadmissible because it had been entered by counsel and not
by the appellant, that it was only for the purposes of the
criminal proceedings and that counsel's authority did not
extend to that fact being treated as an admission in the
present trial, is not tenable.
Per Locke J.:
The evidence of the charge and of the plea of guilty was
relevant and admissible.
The above mentioned judgment is relied upon by
John Sopinka and Sidney N. Lederman, The Law
of Evidence in Civil Cases, Toronto, Butterworths,
1974, at page 143 under the topic, "What Consti
tutes an Admission". The pertinent passages are:
An admission may take many forms. A plea of guilty in a
criminal proceeding or a proceeding arising out of the commis
sion of a provincial offense, is considered an admission which is
admissible as such in a subsequent civil proceding ... It
should be noted that before a plea of guilty is admissible in the
subsequent civil action, the latter proceeding must have arisen.
out of the same or similar circumstances which formed the
basis of the criminal charge.
In addition to the expressed admissions made by a party
himself, judicial admissions made by his legal representative in
court documents such as pleadings or in formal admissions to
the court may be used adversely to the interests of the party.
It may also be noted that the respondent's previ
ous admission by plea resulting in the conviction,
to which facts the parties agree in this case, might
in the absence of such agreement, be proved pursu
ant to subsection 12(2) of the Canada Evidence
Act, R.S.C. 1985, c. C-5.
Thus, the reception of proof of the respondent's
1984 plea and conviction pursuant to the Criminal
Code does not violate his right accorded by para
graph 11(h) of the Charter, simply because here
he is, quite objectively, not being tried or punished
again for the past offence. In no way does this
proceeding constitute a trial for the offence of
which the respondent was convicted in 1984.
Indeed, it plainly seems that access to this judi
cial proceeding, precipitated as it was by the
respondent himself, constitutes that "fair hearing
in accordance with the principles of fundamental
justice for the determination of [the respondent's]
rights and obligations" which is contemplated in
paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III.] These proceedings
are not unconstitutional. That being so, the Court
now decides, under subsection 17(1) of the Citi
zenship Act, upon the evidence tendered, that the
respondent has obtained citizenship by false
representation and fraud and by knowingly con
cealing material circumstances.
Counsel for the respective parties made no
representations about costs and, accordingly, no
costs are awarded to either party.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.