Date: 19981016
Docket: T-938-95
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
JOHANN DUECK
Respondent
REASONS FOR ORDER
NOËL J.:
[1] These Reasons issue in relation to a motion brought by Johann Dueck (the "respondent") for an Order dismissing this reference on the grounds that there is no reasonable cause of action, that the pleadings are immaterial, irrelevant, scandalous or vexatious, and that summary judgment should be given in his favour on the basis that there is no genuine issue for trial.
Background
[2] On January 27, 1995 the Minister of Citizenship and Immigration (the "applicant") sent a Notice in Respect of Revocation of Citizenship (the "Notice") to the respondent. The Notice informed the respondent that:
the Minister of Citizenship and Immigration intends to made to the Governor in Council a report within the meaning of 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, on the grounds that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that you failed to divulge to Canadian immigration and citizenship officials your membership in the Selidovka district (raion) police in German occupied Ukraine during the period 1941 to 1943, and your participation in the executions of civilians and prisoners-of-war during that time... [emphasis added]
le ministre de la Citoyenneté et de l"Immigration a l"intention de faire un rapport au Gouverneur en conseil aux termes des articles 10 et 18 de la Loi sur la citoyenneté , L.R.C. (1985), ch. C-29, telle que modifiée, et de l"article 19 de la Loi sur la citoyenneté canadienne , S.R.C. (1952), ch. 33, telle que modifiée, au motif que vous avez été admis au Canada à titre de résident permanent et avez acquis la citoyenneté canadienne par fraude ou par moyen d"une fausse déclaration ou de la dissmulation intentionnelle de faits essentiels en ce que vous avez omis de révéler aux autorités canadiennes de l"immigration et de la citoyenneté votre appartenance à la police de district (terme russe: raion) de Selidovka de 1941 à 1943 durant l"occupation allemade de l"Ukraine, ansi que votre participation pendant cette période aux exécutions de membres de la population civile et de prisonniers de guerre... [mon souligné]
[3] The Notice further informed the respondent that should the Governor in Council be satisfied based on the report that the respondent had obtained citizenship by false representation or fraud or by knowingly concealing material circumstances, he would cease to be a Canadian citizen on the date fixed by an order of the Governor in Council.
[4] Importantly, the Notice also informed the respondent that within thirty days after the day on which the Notice was sent, he could request that the Minister refer "the case" to the Federal Court of Canada - Trial Division (the "Court"). Further, the Notice advised the respondent that if he did make such a request:
... the case will be referred to the Court and the said report will not be made to the Governor in Council unless the Court decides that you have obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances...
[5] Further to a request by the respondent, on May 4, 1995, a Notice of Reference (the "Reference") in this matter was filed with the Court. This document reads as follows:
TAKE NOTICE that the Minister of Citizenship and Immigration, pursuant to the request made by the Respondent and pursuant to Rule 920 of the Federal Court Rules, hereby refers the matter of the obtaining of citizenship by the Respondent to this Honourable Court for a declaration that the Respondent was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances.
AND FURTHER TAKE NOTICE that in support thereof, the Deputy Attorney General of Canada, on behalf of the Minister of Citizenship and Immigration has filed with the Registry of this Honourable Court this Notice, and, as attachments hereto, a copy of the Notice in Respect of Revocation of Citizenship, dated the 27th day of January, 1995, and the Respondent"s request that the Minister of Citizenship and Immigration refer the case to the Court, dated the 23rd day of February, 1995.
...
[6] On May 17, 1995, pursuant to Rule 920(b)(iii) of the former Federal Court Rules, the applicant filed with the Court a summary of the facts and evidence ("Summary") upon which it intended to rely at the hearing of the case. In its Summary, the applicant alleged that during the German occupation of Selidovka, Ukraine between 1941 and 1943, the respondent was known as Ivan Ivanovich Dik and was a member of the local Selidovka District (Raion) Police. The Summary alleges that the Selidovka police force was a voluntary organization composed of local collaborators and that the respondent served either as the deputy chief of police, chief of police or assistant to the chief of police and that, as required, he also acted as an interpreter for members of the German occupying forces.
[1] The applicant also made several specific allegations with respect to the acts committed by the Selidovka District police and Dueck in particular. These allegations were set out in paragraphs 3 through 9 of the applicant"s Summary and read as follows:
| 3. Throughout the German occupation, the Selidovka District Police participated in the arrests and executions of civilians, including Jews, and members of the Red Army who were prisoners-of-war. The Selidovka District Police participated in the identification, arrest and interrogation of suspected partisans and communist functionaries, the forcible confinement of civilians as hostages, the confiscation of property for the use of German authorities, as well as the conducting of round-ups of youths for the purposes of deportation for force labour in Germany. These activities were carried out either in direct collaboration with German occupying forces, or independently on orders of German occupying forces. |
| 4. In approximately the late fall or December 1941, the Respondent along with several other persons visited the home in Selidovka of the Jewish Kovalevsky family. Several days later, members of the Kovalevsky family, including women and children, were arrested by members of the Selidovka District Police. The Respondent was one of the policemen who participated in the subsequent execution of three members of the Kovalevsky family, as well as the former militiaman Pridatko, at the trenches behind the former military registration office in the old centre of Selidovka. |
| 5. In the late fall, approximately October or November 1941, also at the trenches behind the former military registration office in the old centre of Selidovka, the Respondent was the senior policeman present at the execution by the Selidovka Raion Police of approximately 15 persons, including the Selidovka residents Pirogov, Ivan Kornienko, and Vasily Vorona. |
| 6. In the late fall of 1941, the Selidovka District Police, in conjunction with and on orders of members of the German occupying forces, conducted an execution of seven male prisoners who were wearing Soviet Red Army uniforms at the Yekaterinovskaya mine shaft on the Rekonstruktsiya Collective Farm on the outskirts of Selidovka. The Respondent was one of the senior policemen present and acted as the interpreter for the Germans at the site of the execution. |
| 7. In December of 1941, also at the Yekaterinovskaya mine shaft, the Selidovka District Police, in conjunction with and on orders of members of the German occupying forces, conducted an execution of approximately nine persons, including two women and several men in soldiers" uniforms. The Respondent was one of the senior policemen present and acted as the interpreter for the Germans at the site of the execution. |
| 8. In the fall of 1942, the Selidovka District Police assisted the German military field gendarmerie in the execution of eight to ten prisoners at the mine shaft on the Rekonstruktsiya Collective Farm. Members of the Selidovka District Police served as guards around the site of the execution. The Respondent was present at the execution site and personally ordered members of the police where to stand in the encirclement of the site. |
| 9. In the winter of 1942-1943, when the Soviet Army temporarily broke through the front, the Selidovka District Police arrested and confined as hostages at a mill in Selidovka approximately 30 civilian men from Selidovka. Members of the police stood guard around the mill to prevent the escape of the hostages. When other villagers attempted to bring food and water to the hostages, the Respondent struck at the villagers with his whip while the other policemen struck the villagers with the butts of their rifles. The Respondent was the senior policeman present and was heard issuing orders to the other policemen. |
[2] The Summary contained further allegations that at the time the respondent applied to immigrate to Canada, persons who had served with the enemy in any capacity, persons from German occupied countries known to have collaborated with the Nazi machine and those falling into the general category of "collaborators" were prohibited from coming to Canada. According to the applicant, the respondent did not disclose his membership or senior rank in the Selidovka District Police or his participation in crimes, including mass executions of civilians and prisoners-of-war, committed by the Selidovka District Police. Had these facts been disclosed, the respondent would have been refused an immigrant visa and permission to land in Canada.
[3] Finally, the Summary alleged that when the respondent applied for citizenship, he presented himself to Canadian authorities as a person of good character, despite his membership in the Selidovka District Police, his senior rank in the Selidovka District Police, his participation in crimes, including mass executions of civilians and prisoners of war, committed by the Selidovka police and his failure to disclose this information during his application for immigration to Canada. While the respondent presented himself as a person who had acquired Canadian domicile, when the respondent applied for Canadian citizenship, a person could only acquire Canadian domicile if he had been landed in Canada. A person could only be landed if he had been lawfully admitted to Canada.
[4] On October 6, 1998, during opening arguments, the applicant advised the Court that:
| In the Summary of Facts and Evidence, my lord, at paragraphs 4 through 8, there are allegations as to the participation of the respondent at specific executions. Although the applicant will refer in evidence to the fact that such executions took place, my lord, I do not presently anticipate that the minister will offer evidence as part of its case that the respondent participated in such executions. |
| THE COURT: But isn"t that the allegation? |
| MR. VICKERY: My Lord? |
| THE COURT: Is that not the allegation? |
| MR. VICKERY: My Lord, I would say clearly not. The allegation is alternative. |
The Court subsequently inquired whether the applicant intended to let these allegations stand and the applicant advised that it would withdraw all allegations with respect to the participation of the respondent in the events alleged in paragraphs 4 through 8.
[5] The Amended Summary was filed with the Court on October 9, 1998. As a result, while the allegations remain that the Selidovka police force was involved in the executions outlined in paragraphs 4 through 8 of the Summary, there is no allegation that the respondent participated in these executions. The only specific allegation of criminal activity on the part of the respondent is that during a hostage taking by the Selidovka District Police in the winter of 1942-1943, he struck at villagers with a whip while other policemen struck the villagers with the butts of their rifles. It is alleged that the respondent was the senior policeman present and was heard issuing orders to other policeman. The other allegations which remain are that the respondent was the deputy chief of police, chief of police, or assistant to the chief of police at the time the Selidovka District Police is said to have engaged in the alleged criminal acts and that, as required, he also acted as an interpreter for the German occupying forces.
Position of the Parties
[6] As a result of this change to the Summary, the respondent brings a motion for an Order dismissing this reference. It is the position of the respondent that the Notice alleges a "single, cumulative ground for denaturalisation and revocation of citizenship."1 Thus, there is only one allegation and cause of action, that being that the respondent failed to divulge to Canadian officials his membership in the Selidovka district police and his participation in the executions of civilians and prisoners-of-war during the years 1941 to 1943. The respondent asserts that under Rule 221(1) of the Federal Court Rules, 1998, a pleading may be struck where it discloses no reasonable cause of action. According to the respondent, the test under Rule 221(1)(a) is whether the facts, if taken as proved, disclose a cause of action. Since the applicant has now withdrawn all allegations that the respondent participated in mass executions, the respondent asserts that even if the facts outlined in the Amended Summary could be proven in their entirety, they would not establish the cause of action outlined in the Notice.
[7] The respondent also asserts that where a proceeding does not lead to a practical result it is vexatious. It is also frivolous and vexatious to maintain a pleading in the face of an admission which renders the allegation moot. According to the respondent
| [if] the Minister were to report to the Governor in Council, and recommend that the Respondent"s citizenship be revoked, on some basis other than that set out in the Notice of Revocation, without provision of a fresh Notice of Revocation and an opportunity to have that case referred to this Court, she would be acting without jurisdiction. She would have failed to comply with a statutory condition precedent. [emphasis in original]2 |
Thus, given the cumulative nature of the allegation, any factual findings the Court is being asked to make on the basis of the Amended Summary is without purpose. Such findings would be in reference to an allegation on which the Minister has no authority to report.
[8] Finally, the respondent asserts that having regard to the allegation in the Notice and the absence of facts to support this allegation, the respondent is entitled to summary judgment pursuant to Rule 216(1) of the Federal Court Rules, 1998. It is the position of the respondent that there is no genuine issue for trial.
[9] In response to this motion, the applicant takes the position that there is no requirement that particular grounds be specified in the Notice or that the Notice contain the material facts upon which the proceeding is to be based. The purpose of the Notice is simply to advise the respondent both of the Minister"s intention to submit a report to the Governor in Council and of the respondent"s right to have the matter referred to the Court. According to the applicant, it is the Summary and not the Notice which is the originating process with respect to this reference. Further, the Summary contains the material facts and allegations upon which this proceeding is based and it is the Summary and the Statement of Position of the Respondent ("Respondent"s Statement") which comprise the pleadings.
[10] According to the applicant, this proceeding is an action and is governed by the rules of pleadings. The applicant takes the position that:
| [the] Notice of Reference contains no statement circumscribing the material facts that may be plead, and clearly states that a declaration is sought "that the Respondent was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances." The Summary of Facts and Evidence and the Respondent"s Statement of Position then plead the material facts and allegations which go to deciding the issue set out in the Notice of Reference.3 |
Furthermore, the pleadings have given the respondent notice of the allegations against him, including that of collaboration.
[11] In the alternative, the applicant argues that if the Court accepts the proposition that the Notice is a pleading, then the Notice, the Summary and the Respondent"s Statement, together form the pleadings on which the proceeding is based.
[12] The applicant further submits that with respect to the respondent"s arguments under Rule 221, since the Notice is not a pleading, it cannot be struck out as disclosing no reasonable cause of action. In the alternative, if the Notice is a pleading, it is only part of the pleadings and does not circumscribe the material facts as pleaded in the Summary and the Respondent"s Statement. In the further alternative, the Notice circumscribes the material facts pleaded in the Summary only to the extent that the facts pleaded must go to proving that the respondent obtained Canadian citizenship by false representations, fraud or by knowingly concealing material circumstances.
[13] The applicant makes a further argument in the alternative that if the Notice does circumscribe all the material facts that may be plead, the allegation in the Notice of the respondent"s membership in the Selidovka District Police discloses a reasonable cause of action.
Jurisdiction
[14] This case comes to the Court as a reference from the Minister. In order to determine the jurisdiction of the Court to hear this matter, the starting point must be the statutory provisions directing the reference to the Court. These are sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended ("the Act") and the former Rule 920 of the Federal Court Rules .
[15] The power of the Governor in Council to order the revocation of citizenship can be found in section 10 of the 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. [emphasis added] |
Thus, in order for the Governor in Council to order the revocation of an individual"s citizenship, it must be in receipt of a report from the Minister with respect to the alleged false representation, fraud or knowing concealment of material circumstances. Section 18(1) then sets out the circumstances under which the Minister can make such a report:
| 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] |
[16] Therefore, giving notice of the report to the person affected is a condition precedent to the Minister submitting the report to the Governor in Council. While Section 18 does not specify the extent of the Notice to be given, it seems clear that it must convey to the person concerned both the essence of the alleged false representation which is said to have taken place and the intent to seek revocation as a result thereof. This conclusion is supported by the fact that under subsections 18(1)(a) and (b) the Notice presents the person with a choice. The person may choose not to respond to the Notice4 or request that the Minister refer the case to Court. In order for the person affected to decide which course of action to choose, he or she must know what is said to have been concealed or misrepresented. Thus, where the person affected requests that "the case" be referred to the Court under subsection 18(1)(a) he or she is requesting that the case as set out in the Notice be referred to the Court.
[17] If the person concerned so requests, Rule 920(a) then directs that:
| upon receipt of a request to the Minister by a person (hereafter the "person") in respect of whom the Minister intends to make a report pursuant to section 9 [now section 10] of the Act that the case be referred to the Court, the Minister shall, if he decides to refer the case to Court, forward a copy of the request and of his reference to the Court to the Registry... [emphasis added] |
Reading this section of the Rules together with sections 10 and 18 of the Act, it is clear that "the case" being referred to the Court is the case as set out in the Notice. While Rule 920(a) is silent with respect to the form or content of the Reference, it is notable that "the request" must be forwarded to the Court. The request itself, as noted above, arises from the Notice setting out "the case" to meet.
[18] It is also instructive to note that under 920(b)
| the Minister shall, within 14 days thereafter [the request and reference have been sent to the Registry], file in the Registry and serve on the person... |
| (iii) a summary of the facts and evidence on which the Minister intends to rely at the hearing of the case... [emphasis added] |
Thus, the Summary is to be filed with the Registry within 14 days after the filing of the Reference. This Summary informs the person concerned and the Court of the facts and evidence which the Minister relies on in order to prove "the case."
[19] It is therefore apparent that the matter referred to the Court pursuant to Section 18 of the Act is "the case" as set out by the Minister in the Notice and that the Minister is not entitled to make a report unless she is in receipt of the decision of the Court on "the case" referred to it. It follows that it is not open to the Minister in a reference before this Court to seek a determination on an issue that does not come within "the case" set out by the Minister in her Notice.
The Allegations in the Notice
[20] Having decided that the Notice circumscribes the ambit of the reference, the remaining issue to be decided turns on the construction of this Notice. The respondent takes the position that the allegations set out in the Notice are cumulative while the applicant asserts they are in the alternative. The portion of the Notice that is in dispute reads:
| ... you failed to divulge to Canadian immigration and citizenship officials your membership in the Selidovka district (raion) police in German occupied Ukraine during the period 1941 to 1943, and your participation in the executions of civilians and prisoners-of-war during that time... |
The respondent submits that as the applicant has abandoned the allegation that he participated in the alleged executions, the cumulative case which had been raised against him cannot possibly be proved. The applicant, on the other hand, takes the position that the Notice alleges two distinct grounds each of which can, independently of the other, lead to a conclusion that the respondent was admitted into Canada and obtained his citizenship fraudulently.
[21] In my view, there is one allegation of participation in executions and one allegation of membership in a police organization. The withdrawal of the allegation that the respondent participated in the execution of civilians and prisoners-of-war leaves as an independent ground the allegation that the respondent was a member of the Selidovka police at the relevant time. The alleged failure by the respondent to divulge his membership in that organization constitutes a ground upon which the Minister could, upon a positive determination by the Court, report to the Governor in Council.
[22] The respondent argues that this interpretation goes against the plain meaning of the words contained in the Notice. It is said that if the allegations were intended to be disjunctive, the Minister would have used the word "or" rather than "and" to link these allegations. In my view, this would subject the Notice to a reading that is overly strict. While the Notice does define the case, it does so in a summary way which does not invite the type of scrutiny advocated by the respondent.5 What is essential is that on a fair reading the allegation come within the ambit of the Notice and that, in my view, is the case with respect of the alleged membership of the respondent in the Selidovka police.
[23] Having so concluded, it cannot be said that the Notice discloses no cause of action, that the allegations which remain are frivolous or vexatious or that there is no genuine issue for trial.
[24] The motion is accordingly dismissed.
Marc Noël
Judge
OTTAWA, Ontario
October 16, 1998
__________________1 Memorandum of Fact and Law, Motion Record of the Respondent at 23.
3 Memorandum of Fact and Law of the Applicant at 4.
4 Thereby allowing the Minister to proceed with the report.
5 In so saying, I am mindful of the French text of the Notice which is equally authoritative and which links these two allegations by the words "ainsi que" thereby indicating that the allegations are both cumulative and disjunctive. See paragraph [2] above.