T-1559-88
Her Majesty the Queen (Applicant)
v.
Subah Sadiq (Respondent)
T-1360-90
Subah Sadiq (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: CANADA v. SADIQ (T.D.)
Trial Division, Cullen J.—Calgary, November 21;
Ottawa, December 3, 1990.
Citizenship — Application to revoke citizenship as obtained
on false representations — Applications for permanent resi
dent status and citizenship not disclosing existence of deporta
tion orders — Notice of revocation four and one—half years
after citizenship granted — Revocation proceedings civil, not
time-barred by Citizenship Act, s. 31 — Delay breach of duty
of fairness — Revocation of citizenship serious matter calling
for immediate response — Duty of officials to verify informa
tion in citizenship application — Application dismissed.
Constitutional law — Charter of Rights — Life, liberty and
security — Citizenship Act, ss. 10 and 18, governing revocation
of citizenship, not invalid as contrary to Charter, s. 7 —
Purpose and effect of Act relevant — No unconstitutional
purpose — Intent in ensuring compliance with immigration
rules supporting revocation of citizenship for misrepresenta
tion.
Constitutional law — Charter of Rights — Criminal process
— Nothing intrinsically cruel and unusual in revocation of
citizenship — Not infringing Charter, s. 12.
Estoppel — Proceedings commenced by Minister for revoca
tion of citizenship — Respondent (plaintiff) arguing applica
tion barred as out of time, breach of Charter rights —
Whether delay constituting acquiescence in fraud, estopping
Minister from initiating proceedings — As equitable remedy,
plaintiff must come to court with clean hands — Unable to
determine whether plaintiff having made false representations
without cross-examination on affidavits.
An application by the Secretary of State, under section 10 of
the Citizenship Act, to revoke respondent's citizenship as
obtained by fraud or by concealing material circumstances and
an action for declarations that sections 10 and 18 of the Act
were of no force and effect in that they infringed plaintiffs
sections 7 and 12 Charter rights and that the Secretary of
State's application was statute-barred as made out of time,
were heard together by order of the Associate Chief Justice.
Sadiq comes from Pakistan. He entered Canada in 1974 as a
visitor, overstayed and his deportation was ordered in 1978. He
immediately married a Canadian and voluntarily returned to
his native land. In 1979, he applied for permanent residence
under his wife's sponsorship. He failed to disclose that he had
been under a deportation order when he departed. Sadiq was
granted permanent resident status in 1980. His March, 1983
citizenship application contained a statement that he had never
been the subject of a deportation order. In August, he was
again ordered deported — for the misrepresentation in his
permanent residence application. Yet, in December that year,
Sadiq was granted Canadian citizenship. Sadiq was divorced
from his sponsor in 1980. Currently, he is going through a
second divorce, from a woman he married in Pakistan, and
living common law with a Canadian who is pregnant with his
child.
Sadiq's position is that when he applied for permanent
residence — and subsequently for citizenship — he was una
ware that his deportation had ever been ordered. He suggests,
however, that the authorities who granted him permanent
residence and later citizenship should have been aware of that
circumstance. It was his submission that section 31 of the Act
was a bar to revocation proceedings, that sections 10 and 18
conflict with Charter sections 7 and 12 and that his rights
under the last-mentioned sections had been infringed by the
delay in commencing the revocation proceedings. Relief was
sought under Charter subsection 24(1) in that Sadiq had been
prejudiced by the delay.
The Minister relied on Sadiq's false statements and argued
that his 1980 admission was without the Minister's consent —
required under subsection 55(1) of the Immigration Act — and
that the delay was needed to investigate the case. The Minister
denied that any of Sadiq's Charter rights had been infringed.
Held, the application for revocation should be dismissed.
The revocation proceedings were not barred by section 31,
which is confined to criminal proceedings. Revocation of citi
zenship is civil in nature and there is no statutory time limit to
such a proceeding.
In Canada v. Charran it was held that "security of the
person" could encompass the right to be protected from serious
hurt of a corporeal or incorporeal nature. It was held, however,
that the delay in processing the revocation of citizenship did not
cause serious incorporeal hurt because the longer the delay, the
longer the respondent could stay in Canada. There was no
prejudice to the person. The same argument applies to "cruel
and unusual" treatment or punishment. There is nothing intrin
sically "cruel and unusual" about the revocation of citizenship.
Both the purpose and effect of legislation are relevant in
determining whether a statute is in conformity with the Chart
er. There was no evidence of an unconstitutional purpose in the
Citizenship Act. As to effects, the intent in ensuring compli
ance with immigration rules is a guide in support of the
measure of revoking citizenship for misrepresentation.
There was a violation of the Charter as the duty to be fair
had been breached. The long, inappropriate delay on the part of
the government officials was unacceptable having regard to the
Supreme Court of Canada decision in Askov. Citizenship offi
cials never checked to determine if Sadiq was subject to a
deportation order. Citizenship should have known that the
applicant had been deported and should not have relied on the
attestation in the application. Revocation of citizenship is a
serious matter and called for more immediate responses. The
Court has the discretion to deny revocation under Federal
Court Act, section 18 if there has been undue delay in com
mencing proceedings. The same discretion applies to proceed
ings under the Citizenship Act.
The delay in initiating the proceedings could be considered
an acquiescence in any fraud by Sadiq, thus estopping the
Minister from initiating proceedings. Estoppel, however, is an
equitable remedy and one must come to a court of equity with
clean hands. If Sadiq made false representations, he could be
disentitled to equitable relief. To decide whether citizenship
was obtained by false representations, the Court had to exam
ine the evidence and determine the credibility of Sadiq.
Because of the seriousness of the proceedings, the standard of
proof was a high level of probability. The applicant's credibility
could not be determined on the basis of reading his affidavits
without cross-examination or oral evidence. He could not be
found guilty of misrepresentation.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix
II, No. 44], ss. 7, 12, 24(1).
Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18, 31.
Constitution Act, 1982, Schedule B, Canada Act, 1982,
1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No.
44], s. 52.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Federal Court Rules, C.R.C., c. 663, R. 900.
Immigration Act, R.S.C., 1985, c. I-2, s. 55.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Secretary of State) v. Luitjens, [1989] 2 F.C.
125; (1988), 6 Imm. L.R. (2d) 231 (T.D.); Canada
(Secretary of State) v. Delezos, [1989] 1 F.C. 297;
(1988), 22 F.T.R. 135; 6 Imm. L.R. (2d) 12 (T.D.);
Canada (Secretary of State) v. Charran (1988), 6 Imm.
L.R. (2d) 138; 21 F.T.R. 117 (F.C.T.D.); Reyes v. Attor
ney General of Canada, [1983] 2 F.C. 125; (1983), 149
D.L.R. (3d) 748; 3 Admin. L.R. 141; 13 C.R.R. 235
(T.D.); Gittens (In re), [1983] 1 F.C. 152; (1982), 137
D.L.R. (3d) 687; 68 C.C.C. (2d) 438; 1 C.R.R. 346
(T.D.); R. v. Big M Drug Mart Ltd. et al, [1985] 1
S.C.R. 295; (1985), 60 A.R. 161; 18 D.L.R. (4th) 321;
[1985] 3 W.W.R. 481; 37 Alta. L.R. (2d) 97; 18 C.C.C.
(3d) 385; 85 CLLC 14,023; 13 C.R.R. 64; 58 N.R. 81.
REFERRED TO:
Penner v. Electoral Boundaries Commission (Ont.),
[1976] 2 F.C. 614 (T.D.); R. v. Askov, [1990] 2 S.C.R.
1199.
COUNSEL:
Mark A. Gottlieb for respondent/plaintiff.
D. Bruce Logan for applicant/defendant.
SOLICITORS:
Mark A. Gottlieb, Calgary, for respondent/
plaintiff.
Deputy Attorney General of Canada for
applicant/defendant.
The following are the reasons for judgment
rendered in English by
CULLEN J.: This is an application by Subah
Sadiq (Sadiq) for a declaration against the Crown
under the Citizenship Act, R.S.C., 1985, c. C-29
(the Act), and for an order quashing a reference to
this Court by the Secretary of State. In File
T-1559-88, the Secretary of State (the Minister),
applied to the Governor in Council pursuant to
section 10 of the Citizenship Act, R.S.C., 1985 c.
C-29, to revoke the citizenship of the respondent
Sadiq on the ground that such citizenship was
obtained "by false representation or fraud or by
knowingly concealing material circumstances".
This application has been referred to the Federal
Court by the Minister pursuant to section 18 of
the Act. On December 19, 1989, Sadiq brought an
application in T-1559-88 seeking a declaration
that sections 10 and 18 of the Act are of no force
and effect in that they infringe the rights of Sadiq
guaranteed by sections 7 and 12 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.) [R.S.C., 1985,
Appendix II, No. 44]] (the Charter). This applica
tion was adjourned sine die by McNair J. On May
17, 1990, Sadiq filed a statement of claim
(T-1360-90) seeking:
(1) a declaration pursuant to subsection 52(1) of
the Constitution Act, 1982 [Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,
Appendix II, No. 44] ] that sections 10 and 18 of
the Citizenship Act are of no force and effect on
the grounds that they infringe the rights of the
plaintiff guaranteed under section 7 and section 12
of the Canadian Charter of Rights and Freedoms;
(2) a declaration that the application for revoca
tion to the Governor in Council and the reference
to this Court were made out of time . and are
therefore statute-barred because of this delay;
(3) a judgment quashing the reference or staying
the proceedings in respect thereof.
Counsel for Sadiq had requested that both the
Charter application in T-1559-88 and the relief
requested in the statement of claim in T-1360-90
be heard at the same time and place, which
request was granted by the Associate Chief
Justice.
FACTS
On April 11, 1974, Sadiq entered Canada as a
visitor from his native Pakistan. He remained in
Canada beyond the time permitted under his visi
tor's visa and was ordered deported from Canada
on May 9, 1978. Six days later, on May 15, 1978,
Sadiq married Lucia Dizep, a Canadian citizen.
He departed voluntarily from Canada at his own
expense on May 20, 1978.
Subsequently, on July 25, 1979, Sadiq applied
for permanent residence in Canada from Pakistan
on the sponsorship of his wife. In this application,
Sadiq did not disclose that he had been under a
deportation order when he left Canada. On Janu-
ary 24, 1980, Sadiq's application for permanent
residence was granted, and he was granted admis
sion to Canada as a permanent resident on Febru-
ary 15, 1980.
Sadiq applied for Canadian citizenship on
March 8, 1983. In this application, he stated that
he had never been subject to a deportation order
from Canada. Sadiq was subsequently ordered
deported from Canada again on August 23, 1983,
on the ground that he had misrepresented his
status in respect of his departure from Canada on
May 20, 1978, for the purpose of obtaining perma
nent resident status in Canada. Sadiq appealed the
deportation order to the Immigration Appeal
Board, but the appeal has been stayed pending the
outcome of the application by the Secretary of
State to revoke the citizenship of Sadiq, which was
approved by a citizenship court judge on August
30, 1983. Citizenship was granted to Sadiq on his
taking of the oath of Canadian citizenship on
December 15, 1983.
Sadiq is presently and has been since 1980
employed with Domtar Packaging. In December,
1980, Sadiq was divorced from Lucia Dizep. In
January, 1984, Sadiq married Farida Haji Yousef
in Pakistan, and sponsored her application for
permanent residence in Canada, which was grant
ed in 1985. They have a child, Omar, born Janu-
ary 22, 1986. They are currently being divorced.
Sadiq presently has a common law relationship
with a Canadian citizen who is pregnant with
Sadiq's child.
SADIQ'S POSITION
The position of Sadiq is that at the time he
made his application for permanent residence, he
was not aware that he had been ordered deported
from Canada. He also states that he was unaware
of having been the subject of any deportation order
at the time he applied for citizenship. In support of
this claim, he states that he relied on legal advice
of Mr. G. Jamieson, the fact that he was permitted
to marry a Canadian citizen on May 15, 1978, and
the fact that he left Canada voluntarily on May
20, 1978. In essence, he states that at the material
times that he was granted permanent residence
status on January 24, 1980 and Canadian citizen
ship on August 30, 1983, both the Minister of
Employment and Immigration and the Secretary
of State ought to have known that he had been
ordered deported on May 9, 1978 and August 23,
1983.
Sadiq also states that section 31 of the Act is a
bar to any further revocation proceedings. Section
31 reads as follows:
31. Any proceedings in respect of an offence under this Act
or the regulations that is punishable on summary conviction
may be instituted at any time within but not later than three
years after the time when the offence was committed.
Sadiq also seeks an order pursuant to subsection
52(1) of the Constitution Act, 1982 that sections
10 and 18 of the Citizenship Act are of no force or
effect because they conflict with sections 7 and 12
of the Charter, and consequently an order staying
the revocation proceedings initiated pursuant to
those provisions. He seeks a further order pursuant
to subsection 24(1) of the Charter staying the
proceedings on the ground that his rights under
sections 7 and 12 of the Charter were infringed.
The essence of the alleged infringement is the
prejudice that would befall Sadiq because of the
delay in applying for the revocation.
THE MINISTER'S POSITION,
With respect to the reference to this Court
initiated by the Minister to revoke Sadiq's citizen
ship, the Minister's position is that Sadiq has
obtained citizenship on the basis of false represen
tations made in his application for Canadian citi
zenship, or by knowingly concealing material cir
cumstances, in that he falsely stated in both his
application for permanent residence and citizen
ship that he had never been deported from
Canada. The Minister further states that when
Sadiq was granted admission to Canada on Febru-
ary 15, 1980, such entry was without the consent
of the Minister of Employment and Immigration
as required in such circumstances by subsection
55(1) of the Immigration Act, R.S.C., 1985, c. I-2
which reads:
55. (1) Subject to section 56, where a deportation order is
made against a person, the person shall not, after he is removed
from or otherwise leaves Canada, come into Canada without
the written consent of the Minister unless an appeal from the
order has been allowed.
The Minister states that if there was delay, the
delay was necessary to investigate the circum
stances of the case and to consider the conse
quences of revocation of citizenship upon Sadiq.
With respect to the Charter issues, the Minister
has denied any infringement of Charter rights.
ISSUES
1. Are the revocation proceedings barred by virtue
of section 31 of the Citizenship Act?
2. Does the prejudice, if any, caused by the delay
in initiating revocation proceedings infringe
Sadiq's Charter rights under section 7 or section
12?
3. Are sections 10 and 18 of the Citizenship Act
inconsistent with section 7 and 12 of the Charter
and therefore of no force and effect to the extent
of the inconsistency, pursuant to subsection 52(1)
of the Constitution Act, 1982?
ANALYSIS
Revocation proceedings are governed by sections
10 and 18 of the Citizenship Act, which read as
follows:
10. (1) Subject to section 18 but notwithstanding any other
section of this Act, where the Governor in Council, on a report
from the Minister, is satisfied that any person has obtained,
retained, renounced or resumed citizenship under this Act by
false representation or fraud or by knowingly concealing ma
terial 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 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. [Emphasis added.]
Reference must also be made to Rules 900 ff. of
the Federal Court Rules [C.R.C., c. 663].
Thus, the task of the Court on the reference was
to decide whether citizenship was obtained by false
representations or fraud. This was of course, a
matter of examining the evidence and determining
the credibility of Sadiq. Because of the seriousness
of the proceedings, the standard of proof required
of such alleged civil fraud in revocation proceed
ings will be a high level of probability. As Collier
J. held in Canada (Secretary of State) v. Luitjens,
[1989] 2 F.C. 125 (T.D.), at page 134:
The standard of proof required in civil proceedings is a
preponderance of evidence, or a balance of probabilities. But in
that standard there may be degrees of the quality of the proof
required.
The position I shall adopt here is that as set out by Lord
Scarman in Khawaja v. Secretary of State for The Home
Dept., [1983] 1 All ER 765 (H.L.), at page 780. A high degree
of probability is, in my opinion, required in a case of this kind.
What is at stake here is very important; the right to keep
Canadian citizenship, and the serious consequences that may
result if that citizenship ceases.
Application of Time Limit in Section 31:
The time limit of three years referred to in
section 31 of the Act relating to the initiation of
proceedings in respect of offences under the Act
has no application to revocation proceedings. This
provision is confined to the initiation of proceed
ings in courts of criminal jurisdiction. The revoca-
tion of citizenship is not a criminal proceeding. In
Canada (Secretary of State) v. Delezos, [1989] 1
F.C. 297 (T.D.), Muldoon J. held (at page 303)
that a proceeding taken under the revocation
provisions "is entirely civil in nature; it is not a
criminal law proceeding." As there is no penal
result from the outcome of a citizenship revocation
proceeding, the reference to "offence" in section
31 does not contemplate application to revocation
proceedings.
In any event, it should be noted that the provi
sions of section 10 state that the citizenship of a
person is revoked as soon as the Governor in
Council is satisfied that the citizenship was
obtained by fraud or misrepresentation, notwith
standing any other section of this Act. It is my
view that the provisions applicable to the Governor
in Council apply mutatis mutandis to the Federal
Court when the person elects to refer the matter to
the Court. It would certainly be anomalous if it
were possible for a person to circumvent the revo
cation provisions after three years had elapsed
from the date of the misrepresentation by applying
to the Federal Court if section 31 were to apply to
it, but not the Cabinet. The time limit in section
31 was not intended to have any application to
revocation proceedings either before the Governor
in Council or the Federal Court, and there is no
statutory time limit to such a proceeding.
The delay in initiating the proceedings could be
considered an acquiescence of any fraud by Sadiq,
and thus the Minister is estopped from initiating
proceedings. Estoppel, however, requires a
representation to be made by one party to another.
The Minister makes reference in one of the
motions to a memo in the Immigration Depart
ment which could found an estoppel. However,
estoppel is an equitable remedy, and one must
come to a court of equity with "clean hands". If
Sadiq made false representations, he could be dis-
entitled to equitable relief. The Federal Court does
have the discretion to deny relief sought under
section 18 of the Federal Court Act [R.S.C., 1985,
c. F-7] if there has been undue delay in commenc
ing proceedings: Penner v. Electoral Boundaries
Commission (Ont.), [1976] 2 F.C. 614 (T.D.)
Quaere, however, if the same discretion applies to
proceedings under the Citizenship Act? In my
opinion, it does apply, as the policy considerations
would be the same. In any event, the result would
only be to give the Court the discretion to deny the
Minister.
Infringement of Sections 7 and 12 of the Charter:
Sadiq alleges that the delay in initiating pro
ceedings and the consequential prejudice infringe
his rights under sections 7 and 12 of the Charter.
The two Charter sections read as follows:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
12. Everyone has the right not to be subjected to any cruel and
unusual treatment or punishment.
In Canada (Secretary of State) v. Charran
(1988), 6 Imm. L.R. (2d) 138 (F.C.T.D.) Dubé J.
had to consider whether the delay associated in
processing the revocation of a person's citizenship
infringed the right of a person not to be deprived
of security of the person except in accordance with
the principles of fundamental justice. Dubé J.
acknowledged [at page 144] that the term "securi-
ty of the person" could encompass a wide variety
of interests, including the right to be protected
"from serious hurt, whether of a corporeal or an
incorporeal nature". In this case, the person's pass
port and birth certificate had been seized, and the
person claimed that she lived in fear of her status
in Canada being challenged because of her lack of
documentation pending the hearing. Dubé J., how
ever, found no infringement of section 7 because of
the delay as there was no prejudice to the person.
His Lordship stated, at pages 144-145:
Even if I were to apply the "expansive approach", I could not
come to the conclusion, in this matter, that the delay in the
processing of the revocation of the citizenship of the respondent
has caused her serious incorporeal hurt. It stands to reason that
the longer the revocation was delayed, the longer she could stay
in Canada; she would undoubtedly be happier if the delay had
lasted her lifetime. The deprivation of her identity documents
undoubtedly caused her much distress, but she was guilty of
misrepresentation and impersonation and she has only herself
to blame if her Canadian passport was taken away from her. As
to her birth certificate, I presume that she could readily obtain
a certified copy from her country of origin, as it is obviously not
a Canadian document. Having entered the country under false
pretences and having been caught by the authorities, she is in
no position to blame them for her present anxiety.
The same argument could be made with respect
to the argument on "cruel and unusual treatment
or punishment". In law there is nothing intrinsical
ly "cruel and unusual" about the revocation of
citizenship. In Reyes v. Attorney General of
Canada, [1983] 2 F.C. 125 (T.D.). Cattanach J.
held that there was nothing cruel and unusual
about an executive order by the Cabinet that
denied a grant of citizenship pursuant to section 18
of the Act, as it then was, because the Cabinet felt
that it would be prejudicial to the security of
Canada. It is conceded that the applicant in the
Reyes case could have continued to stay in Canada
despite the lack of citizenship. However, in Gittens
(In re), [1983] 1 F.C. 152 (T.D.), Mahoney J. held
that the execution of deportation orders generally
do not constitute cruel and unusual treatment. His
Lordship stated, at page 161:
The incidents of deportation, whatever their degree, do not
render it cruel and unusual treatment of an adult.
As a norm, execution of a deportation order is not, in the
abstract, cruel and unusual treatment.
Therefore, if deportation is generally not cruel
and unusual treatment, it follows that revocation
of citizenship that could lead to deportation is also
not cruel and unusual treatment.
With respect to the declaration of invalidity
sought for sections 10 and 18 of the Citizenship
Act, it is clear from R. v. Big M Drug Mart Ltd. et
al., [1985] 1 S.C.R. 295, that both the purpose
and effect of legislation were relevant in determin
ing whether a statute was in conformity with the
Charter. In this case, there is no evidence of an
unconstitutional purpose in the statute.
As to the effects, the analysis above is applicable
here. The intent of the nation in ensuring compli-
ance with immigration rules is a guide in support
of the measure of revoking citizenship for
misrepresentation.
CONCLUSION
The reference by the Secretary of State to this
Court is in order. The application for revocation is
not statute barred. However, there is clearly a
violation of the Charter. There is a duty on the
part of the Citizenship officials to be fair and in
my view they have failed in that responsibility due
to delay.
Sadiq secured permanent resident status on
January 24, 1980. On March 8, 1983 he applied to
become a Canadian citizen. Although ordered
deported again on August 23, 1983, his citizenship
application was approved on August 30, 1983 and
on December 15, 1983 he took his oath of Canadi-
an Citizenship. The citizenship officials never
checked to determine if Sadiq was subject to a
deportation order. The Immigration people knew
this fact May 28, 1979 and certainly by April/May
1981. Immigration did not communicate this
information to Citizenship and that's not surpris
ing but what is incredible is that Citizenship never
asked. The bland response by Citizenship was that
they relied on the applicant's answer. One is
moved to wonder if they check with the RCMP
when a person says he has no criminal record. The
sequence of events after Sadiq secured Canadian
citizenship also provides some insight into the
almost lackadaisical approach taken by the Citi
zenship people. Counsel for Sadiq, after reading
the affidavit by a Ms. Lane, states, and I agree:
We have an explanation that is rife with systemic delay, delay
that is not justified on any kind of interpretation of the way
that a government department such as the Citizenship Depart
ment ought to work; delay that would not be countenanced, my
lord, by the Supreme Court of Canada having regard to the
Askov case.
The facts, or at least the dates, are not in
dispute: Sadiq's Canadian citizenship application
was approved August 30, 1983 and he took his
oath as a Canadian citizen December 15, 1983.
The notice of revocation, according to Ms. Lane,
the Registrar of Canadian Citizenship, was signed
July 21, 1987 (although the document given to the
Court was dated June 7, 1988). In any event some
four and a half to five years elapsed before Sadiq
had any notice of revocation.
In the Lane affidavit we learn that Canada
Immigration, Calgary, notified the Citizenship
Department on March 21, 1984 that Sadiq had
been ordered deported twice, once in 1978 and
again in 1983. (Exhibit A to the affidavit of Sadiq
is a two-way office memorandum confirming he
had been deported, that he was allowed voluntary
departure and that they had no objection to his
return).
At page 19 of the transcript counsel for Sadiq
states:
It's unbelievable in my respectful submission, to think that in
the 1980's two government departments that are so closely
allied would have such a lack of communication that it would
take three years for the Citizenship Department to know that
Mr. Sadiq had been deported. And certainly, sir, given the fact
that he made his application in March 6, 1983 it is equally
shocking to find that it took a year before a telephone call was
made from Immigration to the Citizenship Department advis
ing that Mr. Sadiq had been deported twice. And when one
follows the flow of this affidavit subsequent events show an
equally surprising lack of effort and performance on the part of
the Citizenship Department to get this revocation application in
gear.
What are the facts according to Lane?
1. March 21, 1984 — Citizenship received notice
of deportation order;
2. July 17, 1984 (four months later) — the case
was referred to a Programme Officer for review
and action;
3. November 16, 1984 (another four months) —
the case was referred to the department's legal
services unit for an opinion;
4. Three months later, a legal opinion was secured
and advice received that the case was being
referred to the Department of Employment and
Immigration (C.E.I.C.);
5. Five months later, Lane was provided with the
position of C.E.I.C. as well as other cases where
revocation was being considered;
(Thus, seven years elapsed from the first time
Sadiq was deported and a year and a half after he
applied for citizenship, for C.E.I.C. to notify Citi
zenship of its position on Sadiq.)
6. November 17, 1985 (five months later) — in
response to a request from one Programme Offi
cer, Canada Immigration in Calgary provided
Sadiq's last known address;
7. March 10, 1986 — the case was being prepared
for consideration by the Minister together with six
other cases;
8. October 24, 1986 (six months later) — a
memorandum was prepared for the Minister con
cerning seven persons who obtained citizenship
allegedly in the same fashion as Sadiq which
memorandum had legal opinions;
9. July 21, 1987 (nine months later) — A notice
of revocation was signed. It was mailed to Sadiq
and returned as undeliverable. (How long did it
take to get back from Canada Post — weeks, 2
weeks?);
10. September 3, 1987 — the RCMP were asked
to locate Sadiq;
11. January 5, 1988 — RCMP provided Sadiq's
address;
12. January 7, 1988 — a second notice of revoca
tion was signed, and mailed to Sadiq.
Lane attests there is no way she ought to have
known on or before December 15, 1983 of the two
deportation orders. Might I be so bold as to sug
gest a phone call, a letter, a two-way memoran
dum, could have been sent to C.E.I.C. and not to
rely on the attestation in the application. If Citi
zenship didn't know shortly after the application
was made March 15, 1983 that Sadiq had been
ordered deported, then it should have. I read the
other "reasons" for delay but they are just not
credible.
What really occurred here was an interminable
delay by officials, and during that time Sadiq was
getting established. This case was not given the
priority it deserved. Revocation of one's Canadian
citizenship is a serious matter and called for more
immediate responses than are evident here.
On another matter, I do not believe one can
truly determine the credibility of Sadiq on the
basis of reading his affidavits, with no cross-
examination or oral evidence. What is clear, how
ever, is that, had Sadiq, after one year sought
Ministerial approval as required by the Immigra
tion Act, that approval most assuredly would have
been given. The document filed by counsel for
Sadiq clearly establishes the Department had no
objections to his returning to Canada and that
Immigration officials considered his marriage as
valid, and not one of convenience. In his affidavit,
Sadiq attests that he sought a legal opinion, names
the lawyer and states he voluntarily left, paid his
own expenses and that officials permitted him to
marry before he left Canada. Sadiq was not cross-
examined on his affidavit, and that option was
open to Sadiq for the revocation but not initiated.
On balance, I believe the long, inappropriate delay
did not give Sadiq that to which he was entitled
a duty of fairness. Dubé J., in Canada v. Charran
(supra) found the applicant guilty of misrepre
sentation. I cannot so find here, given Collier J.'s
direction in Canada v. Luitjens (supra).
Therefore, the officials at Citizenship having
failed in their responsibility to Sadiq, it is my
decision that the application for revocation is dis
missed. There will be no order as to costs.
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.