Canada (Minister of Citizenship and Immigration) v. Dueck, (1998) 155 F.T.R. 1 (TD)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: December 21, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 155 F.T.R. 1 (TD)

Can. (M.C.I.) v. Dueck (1998), 155 F.T.R. 1 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. JA.026

The Minister of Citizenship and Immigration (applicant) v. Johann Dueck (respondent)

(T-938-95)

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

Federal Court of Canada

Trial Division

Noël, J.

December 21, 1998.

Summary:

Dueck emigrated from Austria in 1948 and obtained citizenship in 1957. In 1995, the Minister of Citizenship and Immigration notified Dueck that his citizenship would be revoked on the grounds that it was obtained by false representation or fraud or by knowingly concealing material circumstan­ces, namely, that he was a member of the Selidovka district police in German occupied Ukraine during the Second World War. The matter was referred to the court.

The Federal Court of Canada, Trial Divi­sion, held that Dueck did not obtain citizen­ship by false representation or fraud or by knowingly concealing material circum­stances.

Editor's Note: for previous proceedings in this matter see 130 F.T.R. 262, 146 F.T.R. 89, 147 F.T.R. 157; 154 F.T.R. 265, 154 F.T.R. 241, 156 F.T.R. 150; [1997] F.T.R. Uned. 637, [1998] F.T.R. Uned. 273 and [1998] F.T.R. Uned. 487.

Aliens - Topic 2504

Naturalization - General - Revocation - Dueck emigrated from Austria in July 1948 and later obtained Canadian citizen­ship - In 1995, the Minister of Citizenship and Immigration notified Dueck that his citizenship would be revoked, alleging that it was obtained by false representation or fraud or that he knowingly concealed his membership in the Selidovka district police in German occupied Ukraine during the Second World War - The Federal Court of Canada, Trial Division, disagreed where: (1) Dueck, an interpreter, was not a mem­ber of the Selidovka police; (2) there was no consistent screening process applied to all Austrian immigrants in July 1948 that would have elucidated answers about Dueck's wartime activities; (3) there was no blanket prohibition for collaborators in July 1948 and Dueck did not come within the class of collaborators who were barred from entering Canada at that time; and (4) there was no legal authority for security screening of immigrants in July 1948.

Aliens - Topic 2504

Naturalization - General - Revocation - In July 1949, approval for immigration to Canada required, inter alia, security screening by a visa control officer (RCMP) - Dueck emigrated from Austria in July 1948 and later obtained Canadian citizen­ship - The Minister of Citizenship and Immigration sought to revoke Dueck's citizenship, asserting that it was obtained by false representation or fraud or that he knowingly concealed that he had been a collaborator during the Second World War - An issue arose as to whether there existed legal authority for security screen­ing of immigrants in July 1948 - The Fed­eral Court of Canada, Trial Division, held that neither the Immigration Act nor Orders-in-Council authorized the RCMP to reject immigrants on the basis of col­labo­ration with the enemy - Security screening was dealt with by departmental action rather than by legislation - Finally, the security screening process was not sup­ported by Crown prerogative because the Immigration Act covered the whole of the prerogative - See paragraphs 261 to 304.

Aliens - Topic 2511

Naturalization - General - Evidence - Dueck emigrated from Austria in July 1948 and later obtained Canadian citizen­ship - In 1995, the Minister of Citizenship and Immigration sought to revoke Dueck's citizenship, alleging that it was obtained by false representation or fraud or that he knowingly concealed his membership in the Selidovka district police in German occupied Ukraine during the Second World War - An issue arose as to the applicable security screening criteria in July 1948 - The Minister relied on documents dated between 1949 and 1959 to show a blanket prohibition for collaborators in July 1948 -The Federal Court of Canada, Trial Divi­sion, observed that while as a matter of methodology, reliance could be placed on subsequent documents to attest to a prior state of affairs when the situation remained relatively constant, it was entirely inappro­priate to do so when the situation was in a state of flux and rapid evolution (as occurred in 1948 with respect to security screening) - See paragraphs 225 to 229.

Aliens - Topic 2548

Naturalization - Disqualifications - Mak­ing false representation or concealing material circumstances - [See first Aliens - Topic 2504 ].

Crown - Topic 2203

Crown privilege or prerogative - General - For reasons of national security - [See second Aliens - Topic 2504 ].

Crown - Topic 2206

Crown privilege or prerogative - General - When not available - [See second Aliens - Topic 2504 ].

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.), refd to. [para. 18, foot­note 2].

Canada (Minister of Citizenship and Immigration) v. Vitols (1998), 151 F.T.R. 161 (T.D.), refd to. [para. 243, footnote 281].

Statutes Noticed:

Immigration Act, R.S.C. 1927, c. 93, sect. 38 [para. 266].

Authors and Works Noticed:

Halsbury's Laws of England, (4th Ed.), vol. 8(2), p. 244, para. 367 [para. 300, footnote 330].

Hogg, Peter W., Constitutional Law of Canada (1997, 4th Ed.), pp. 15-19 [para. 301, footnote 331].

Counsel:

Donald MacIntosh and Cheryl D. Mitchell, for the applicant (in Selidovo, Ukraine);

Paul Vickery, Terry Beitner and Rob MacKinnon, for the applicant (in Ottawa, Toronto, Winnipeg);

Donald B. Bayne, Peter Doody and Larry Elliot, for the respondent.

Solicitors of Record:

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

Bayne, Sellar, Boxall, Ottawa, Ontario and Scott & Aylen, Ottawa, Ontario, for the respondent;

Noël, J., of the Federal Court of Canada, Trial Division, heard this reference on May 25, June 2, October 6-8, 13-16, 21-23, 26-30 and November 3-4, 9-10, 12, 16-17, 25-27, 1998, in Selidovo, Ukraine, Ottawa, Ontario, Toronto, Ontario and Winnipeg, Manitoba. Noël, J., released the following decision on December 21, 1998.