Canada (Minister of Citizenship and Immigration) v. Odynsky, (2001) 196 F.T.R. 1 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: March 02, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 196 F.T.R. 1 (TD)

Can. (M.C.I.) v. Odynsky (2001), 196 F.T.R. 1 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. MR.038

In The Matter Of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

And In The Matter Of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

And In The Matter Of a reference to the Court pursuant to Rule 920 of the former Federal Court Rules, continued pursuant to Rule 169(a) of the Federal Court Rules, 1998, as required pursuant to Rule 501.

The Minister of Citizenship and Immigration (plaintiff) v. Wasyl Odynsky (defendant)

(T-2669-97; 2001 FCT 138)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Odynsky

Federal Court of Canada

Trial Division

MacKay, J.

March 2, 2001.

Summary:

The Minister of Citizenship and Immigration sought a declaration that the defendant was admitted to Canada for permanent residence and obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

The Federal Court of Canada, Trial Division, granted the declaration, finding on a balance of probabilities that the defendant was admitted to Canada for permanent residence in 1949, and obtained citizenship in 1955 by false representation or by knowingly concealing material circumstances.

Aliens - Topic 2504

Naturalization - Revocation - In 1997, the Minister of Citizenship and Immigration issued a notice of revocation of citizenship regarding the defendant, a Ukrainian, who immigrated to Canada in 1949 and obtained citizenship in 1955 - The Minister claimed that the defendant had obtained permanent residence and citizenship by false representation or fraud or by knowingly concealing material circumstances, by failing to divulge his collaboration with German authorities and involvement in activities connected with forced labour and concentration camps during World War II - The Federal Court of Canada, Trial Division, declared that the defendant obtained citizenship in Canada by false representation or by knowingly concealing material circumstances within the meaning of the Citizenship Act, 1985 - See paragraphs 1 to 228.

Aliens - Topic 2504

Naturalization - Revocation - Section 10(1) of the Citizenship Act 1985 provided that if the Minister of Citizenship and Immigration was satisfied that a person obtained citizenship by false representation or fraud or by knowingly concealing material circumstances that person's citizenship would cease - Section 10(2) provided that a person was deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if that 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 - The Federal Court of Canada, Trial Division, interpreted s. 10, holding that the section was applicable to a situation where, in 1997, the Minister was attempting to revoke the citizenship of a person who came to Canada in 1949 and obtained citizenship in 1955 - See paragraphs 113 to 124.

Aliens - Topic 2504

Naturalization - Revocation - A notice of revocation of citizenship issued by the Minister of Citizenship and Immigration alleged that the defendant obtained permanent residence and citizenship by false representation or fraud or by knowingly concealing material circumstances, by failing to divulge his collaboration with German authorities and involvement in activities connected with forced labour and concentration camps during World War II - The defendant argued that the notice was to be construed strictly (i.e., that each individual allegation must be proven) - The Federal Court of Canada, Trial Division, rejected such a literal interpretation and the argument that every detail of fact alleged in the notice had to be established by the Minister - The court held that the word "and" as used in the notice was to be read disjunctively such that, for example, it was not necessary to prove that the defendant was connected to both forced labour "and" concentration camps - See paragraphs 92 to 101.

Aliens - Topic 2504

Naturalization - Revocation - The Federal Court of Canada, Trial Division, per MacKay, J., stated that "The Notice [of revocation of citizenship] is not a statute. In my view, it is to be interpreted reasonably, bearing in mind the purpose for the Notice, as provided in s. 18 of the Citizenship Act, that is, defining in very brief and summary terms the basis of the Minister's determination to seek revocation of citizenship. The notice is to be appropriate for providing fair advice to the recipient of the ultimate case he has to meet, the details of which are then set out in the Statement of Fact and Evidence, or under the current Rules, a Statement of Claim, and these may be further particularized or elucidated through discovery under the Court's Rules for actions." - See paragraph 97.

Aliens - Topic 2504

Naturalization - Revocation - [See all Aliens - Topic 2548 ].

Aliens - Topic 2546

Naturalization - Disqualifications - Security threat - [See third and fourth Aliens - Topic 2548 ].

Aliens - Topic 2546

Naturalization - Disqualifications - Security threat - The Federal Court of Canada, Trial Division, discussed the government's authority to impose screening for admission of immigrants in the early post-war period, up to 1950 - See paragraphs 125 to 153 - The court stated that "in 1949 ... the arrangements in place for security screening of applicants were authorized implicitly under regulations that granted discretion to immigration officers to approve and to issue a visa to those selected within the classes of persons approved by regulation. Further, the rejection of those who did not clear the security screening by R.C.M.P. officers was within the prerogative authority of the Government of Canada to deal with aliens seeking admission to this country under the classes of persons approved by regulation and by legislation for admission." - See paragraph 153.

Aliens - Topic 2548

Naturalization - Disqualifications - Making false representation or concealing material circumstances - Pursuant to ss. 10 and 18 of the Citizenship Act 1985, the Minister of Citizenship and Immigration could issue a notice of revocation of citizenship if the Minister was satisfied that a person obtained citizenship by false representation or fraud or by knowingly concealing material circumstances - The Federal Court of Canada, Trial Division, interpreted these provisions, and in particular the phrase "knowingly concealing material circumstances" - See paragraphs 154 to 162 - The court concluded that "the words 'knowingly concealing material circumstances' used in ss. 10 and 18 require 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." - See paragraph 159.

Aliens - Topic 2548

Naturalization - Disqualifications - Making false representation or concealing material circumstances - Pursuant to ss. 10 and 18 of the Citizenship Act 1985, the Minister of Citizenship and Immigration could issue a notice of revocation of citizenship if the Minister was satisfied that a person obtained citizenship by false representation or fraud or by knowingly concealing material circumstances - The Federal Court of Canada, Trial Division, adopted the view, respecting the meaning of "knowingly concealing material circumstances", that "absent relevant questions, where a person cannot be presumed to know particular matters of concern, there is no duty of candor" - See paragraph 155.

Aliens - Topic 2548

Naturalization - Disqualifications - Making false representation or concealing material circumstances - The Minister of Citizenship and Immigration issued a notice of revocation of citizenship, claiming that the defendant had obtained permanent residence and citizenship by knowingly concealing material circumstances (i.e., his involvement with the Germans during World War II) - The defendant claimed that there was no proof that his wartime activities were material to his admission because there was no proof that their disclosure would have resulted in him being denied admission - The Federal Court of Canada, Trial Division, disagreed that the test of materiality was whether the activities, if known, would have resulted in his rejection - Rather materiality should be determined in light of the significance for purposes of the decision in question of the information not disclosed - Here the defendant's wartime activities were relevant and significant for assessing him in the context of several of the rejection criteria - See paragraphs 154 to 157.

Aliens - Topic 2548

Naturalization - Disqualifications - Making false representation or concealing material circumstances - The Minister of Citizenship and Immigration issued a notice of revocation of citizenship, claiming that the defendant had obtained permanent residence in 1949 and citizenship in 1955 by knowingly concealing material circumstances (i.e., his involvement with the Germans during World War II) - The defendant claimed that he was not asked questions by security officers about his wartime activities and therefore did not knowingly conceal material circumstances - The Federal Court of Canada, Trial Division, concluded that the defendant was subjected to security screening and that he would have been questioned about his wartime activities - If those activities had been disclosed, his application for admission would have been rejected - The court found that it was more probable than not that the defendant did not answer truthfully questions asked by the security officer - The defendant therefore misrepresented the facts or concealed facts about his wartime activities - See paragraphs 163 to 191.

Crown - Topic 2201

Crown privilege or prerogative - General - The Federal Court of Canada, Trial Division, per MacKay, J., stated that "it is clear Parliament may displace the exercise of prerogative power, in principle and by virtue of section 17 of the Interpretation Act. Nevertheless, I am not persuaded that the prerogative power of the Crown is limited by parliamentary provision for discretion to be exercised through regulation by the Governor in Council, which legislation or regulation does not expressly bind the Crown or does not do so by clear implication, at least until the adoption of regulations that conflict with or provide for displacement of, the continuing exercise of prerogative authority." - See paragraphs 148.

Crown - Topic 2203

Crown privilege or prerogative - General - For reasons of national security - [See second Aliens - Topic 2546 ].

Crown - Topic 2205

Crown privilege or prerogative - General - When available - [See second Aliens - Topic 2546 ].

Words and Phrases

Knowingly concealing material circumstances - The Federal Court of Canada, Trial Division, discussed the meaning of this phrase as it was used in ss. 10(1) and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 - See paragraphs 154.

Words and Phrases

Under this Act - The Federal Court of Canada, Trial Division, discussed the meaning of this phrase as it was used in s. 10(1) of the Citizenship Act, R.S.C. 1985, c. C-29 - See paragraph 118.

Cases Noticed:

Canada (Secretary of State) v. Luitjens (1993), 142 N.R. 173 (F.C.A.), refd to. [para. 13, footnote 1].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 151 D.L.R.(4th) 119, refd to. [para. 13, footnote 1].

Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203; 155 F.T.R. 1 (T.D.), refd to. [para. 13, footnote 2].

Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.), refd to. [para. 13, footnote 3].

Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161 (T.D.), refd to. [para. 49, footnote 7].

Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161 (T.D.), refd to. [para. 49, footnote 7].

Canada (Secretary of State) v. Luitjens, [1989] 2 F.C. 125; 46 F.T.R. 267 (T.D.), refd to. [para. 86, footnote 18].

Tewelde v. Canada (Minister of Citizenship and Immigration) (2000), 264 N.R. 365 (F.C.A.), refd to. [para. 118, footnote 35].

Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (T.D.), refd to. [para. 121, footnote 36].

CNCP Telecommunications v. Alberta Government Telephones and CRTC, [1989] 2 S.C.R. 225; 98 N.R. 161, refd to. [para. 145, footnote 58].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127 (T.D.), affd. (1995), 179 N.R. 106 (F.C.A.), refd to. [para. 150, footnote 61].

Espaillat-Rodriguez v. Canada, [1964] S.C.R. 3, refd to. [para. 151, footnote 62].

Canada (Minister of State for Multiculturalism and Citizenship) v. Minhas (1993), 66 F.T.R. 155 (T.D.), refd to. [para. 158, footnote 64].

Canada (Minister of Citizenship and Immigration) v. Malik (1997), 128 F.T.R. 309 (T.D.), refd to. [para. 160, footnote 65].

Canada (Minister of Citizenship and Immigration) v. Coomar (1998), 159 F.T.R. 37 (T.D.), refd to. [para. 160, footnote 66].

Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, refd to. [para. 177, footnote 67].

Canada (Minister of Citizenship and Immigration) v. Nemsila et al. (1997), 214 N.R. 383 (F.C.A.), affing. (1996), 120 F.T.R. 132 (T.D.), refd to. [para. 223, footnote 74].

Jaber v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2000] 1 F.C. 603; 250 N.R. 235 (F.C.A.), refd to. [para. 224, footnote 75].

Tran v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 186 (T.D.), refd to. [para. 224, footnote 75].

Statutes Noticed:

Canadian Citizenship Act, R.S.C 1952, c. 33, sect. 2(j), sect. 10(1) [para. 82]; sect. 19 [para. 6]; sect. 19(1)(b) [para. 116].

Citizenship Act, R.S.C. 1985, c. C-29, sect. 10, sect. 18 [para. 5].

Citizenship Act, 1952 - see Canadian Citizenship Act.

Interpretation Act, R.S.C. 1985, c. I-2, sect. 17 [para. 143].

Authors and Works Noticed:

Chitty, A Treatise of the Law of the Prerogative of the Crown and the Relative Duties of the Subject (1820), p. 49 [para. 145, footnote 57].

Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Nuremberg, October 1946 - April 1949, generally [para. 181, footnote 71].

Counsel:

David Littlefield, Peter Hajecek and Lynn Lovett, for the plaintiff;

Frank Marrocco, Brian Armstrong and Boyd Balogh, for the defendant.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the plaintiff;

Smith Lyons, Toronto, Ontario, for the defendant.

This case was heard in Beleluja, Ukraine and Toronto, Ontario, on November 23-26, 1998, February 1-3, 9-11, 19 and 22, March 8-10, April 19-23, 26, 27, 29 and 30, and August 10-12, 1999, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on March 2, 2001.