2017 FC 473, 2017 FC 473

[2017] 4 F.C.R. 555 2017 FC 473 T-1584-15 Abdulla Ahmad Hassouna ( Applicant ) v. The Minister of Citizenship and Immigration Canada ( Respondent ) T-6-16 Tareq Madanat ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) T-27-16 Thomas Gregory Gucake ( Applicant ) v . The Minister of Citizenship and Immigration Canada ( Respondent ) T-1-16 Hisham Ajjawi ( Applicant ) v . The Minister of Citizenship and Immigration Canada ( Respondent ) T-213-16 Philipp Parkhomenko ( Applicant ) v .

The Minister of Immigration, Refugees, and Citizenship Canada ( Respondent ) T-273-16 Chaohui Situ ( Applicant ) v . The Minister of Citizenship and Immigration ( Respondent ) T-2154-15 Muhammad Shahid Bandukda ( Applicant ) v . The Minister of Citizenship and Immigration ( Respondent ) T-438-16 Sakr, Marie ( Applicant ) v . The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Hassouna v. Canada (Citizenship and Immigration) Federal Court, Gagné J.— Toronto, November 15, 16 and 17, 2016; Ottawa, May 10, 2017.

Citizenship and Immigration — Status in Canada — Citizens — Judicial reviews challenging constitutionality of revocation or proposed revocation of applicants’ citizenship on grounds of fraud or misrepresentation under Citizenship Act (Act) as amended by Strengthening Canadian Citizenship Act (SCCA) — Nature of alleged frauds, misrepresentations varying amongst applicants — SCCA coming into force on May 28, 2015, amending, repealing various provisions of Citizenship Act resulting in material changes to

provisions regarding revocation of citizenship — Under former Act (before amendments), final decision could only be reached by Governor in Council based on respondent’s report but under amended Act (after amendments), person’s citizenship revocable by respondent under Act, s. 10(1) if specific criteria met — SCCA also containing transitional provisions, namely s. 40(1) — Main issues: where respondent issuing notice of revocation under former Act, applicant requesting referral to Court but no such referral made by respondent, whether revocation to be determined in accordance with provisions of former or amended Act; whether any of amended Act, ss. 10(1), 10(3) or 10(4) unconstitutional as violating Canadian Bill of Rights, ss. 1(a), 2(e) — Transitional provision SCCA, s. 40(1) examined — Plain meaning of words therein indicating that for applicants’ cases to be dealt with pursuant to former Act, proceeding had to be pending before Federal Court before May 28, 2015 — In present case, applicants’ mere request to have matter referred to Court for adjudication under previous scheme not considered proceeding pending before Court — Accordingly, notices issued to three applicants under former Act cancelled pursuant to SCCA, s. 40(4) — Special circumstances justifying prolonged delay between time respondent informed of alleged fraud or misrepresentations, time applicants receiving notices of intent to revoke under amended Act; not warranting stay of proceedings as requested — Canadian Bill of Rights, s. 2(

e) applying regarding respondent’s decision-making process, extending beyond protection afforded in Canadian Charter of Rights and Freedoms — Therefore, Bill of Rights continuing to operate notwithstanding Charter — Four basic conditions in order for Bill of Rights, s. 2 (

e) to be engaged discussed, met in present case — Thus, pursuant to Bill of Rights, s. 2(e), amended Act, ss. 10(1), 10(3), 10(4) declared inoperative — Applications allowed in part. Bill of Rights — Applicants challenging constitutionality of revocation or proposed revocation of citizenship on grounds of fraud or misrepresentation under Citizenship Act (Act) as amended by Strengthening Canadian Citizenship Act — Whether any of amended Act, ss. 10(1) , 10(3) or 10(4) unconstitutional as violating Canadian Bill of Rights, ss. 1(a), 2(e) — Canadian Bill of Rights, s. 2(

e) applying regarding respondent’s decision-making process, extending beyond protection afforded in Canadian Charter of Rights and Freedoms — Therefore, Bill of Rights continuing to operate notwithstanding Charter — Four basic conditions in order for Bill of Rights, s. 2 (

e) to be engaged discussed, met in present case —

(1) Applicants, as individuals affected by the legislation, clearly constituting “persons” within meaning of Bill, s. 2(e) —

(2) Determination by immigration officer pursuant to amended Act, s. 10 constituting hearing pursuant to Bill, s. 2(e); citizenship revocation falling within “rights and obligations” threshold provided by s. 2(e) —

(3) Nature, importance of decision to affected individuals clearly auguring in favour of high degree of procedural fairness being owed to applicants; process herein violating procedural fairness —

(4) Citizenship revocation regime having as its legal source Citizenship Act, a federally enacted statute, which does not expressly declare that it operates notwithstanding the Bill of Rights — Consequently, impugned provisions violating Bill of Rights, s. 2(

e) since depriving applicants of right to fair hearing in accordance with principles of fundamental justice.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Applicants challenging constitutionality of revocation or proposed revocation of citizenship on grounds of fraud or misrepresentation under Citizenship Act (Act) as amended by Strengthening Canadian Citizenship Act; alleging that provisions of amended Act violating Canadian Charter of Rights and Freedoms, s. 7 — Whether any of amended Citizenship Act, ss. 10(1) , 10(3) or 10(4) unconstitutional as violating Charter, s. 7 — Revoking person’s citizenship by reason of fraud or misrepresentation not interfering with or violating person’s right to liberty or security of person; as such, Charter, s. 7 not engaged — Impugned provisions dealing with revocation of citizenship for fraud or misrepresentations not infringing right to liberty, security of applicants or of persons in their position — Therefore, revocation provisions in amended Act not inconsistent with Charter, s. 7.

Constitutional Law — Charter of Rights — Legal Rights — Cruel and unusual treatment or punishment — In judicial review challenging constitutionality of revocation or proposed revocation of applicants’ citizenship on grounds of fraud or misrepresentation under Citizenship Act (Act) as amended by Strengthening Canadian Citizenship Act, applicants alleging Act, s. 10 subjecting individual to cruel, unusual treatment in violation of Charter, s. 12 — Whether amended Citizenship Act, s. 10 subjecting individual to cruel, unusual treatment in violation of Charter, s. 12 — To establish violation, having to demonstrate being subjected to treatment or punishment at hands of state; that such treatment or punishment cruel, unusual — While deportation might come within scope of “treatment” in Charter, s. 12, citizenship revocation for fraud or misrepresentation does not — Even if process for revoking citizenship for fraud or misrepresentation hypothetically considered “treatment” for purpose of Charter, s. 12, any such treatment would not be cruel, unusual.

These were applications for judicial review challenging the constitutionality of the revocation or proposed revocation of the applicants’ citizenship on grounds of fraud or misrepresentation under the Citizenship Act (Act) as amended by the Strengthening Canadian Citizenship Act (SCCA). Under the former revocation system, all persons who received a notice of intent to revoke their citizenship had the option to have the issue of whether they had obtained their citizenship through fraud or misrepresentation considered by the Court.

The new system brought forward by the SCCA provides for two different procedures: a judicial model for complex cases and an administrative model for “non-complex” cases, which was the only model under review in these applications. Some of the applicants herein had their citizenship revoked whereas no decisions were yet rendered respecting the other applicants whose files were caught up by an injunction rendered by the Court preventing the respondent from further processing specific cases.

Some applicants had received a notice of intent to revoke their citizenship under the previous regime and, although they had requested to have their files referred to the Court for a factual determination, they were not. When sending a second notice of intent under the current regime, the respondent took the position that the previous notices were cancelled by virtue of the application of the transitional provisions of the SCCA. Other applicants only received a notice of intent to revoke under the current regime.

The SCCA came into force on May 28, 2015, and amended and repealed various provisions of the Citizenship Act resulting in material changes to the provisions regarding revocation of citizenship. Under the former Act (Act prior to SCCA amendments), an individual’s citizenship could be revoked pursuant to

section 10 where it was established that citizenship was acquired by false representation or fraud or by knowingly concealing material circumstances. A final decision could only be reached by the Governor in Council based on a report by the respondent.

Under the amended Act (Act after SCCA amendments), an individual’s citizenship can be revoked by the respondent pursuant to subsection 10(1) if the respondent is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances. The SCCA also contains transitional provisions and subsection 40(1) was the most relevant provision in this case. It provides that proceedings pending before the Court immediately before the day on which

section 8 comes into force as a result of a

section 18 referral under the Act, as that

section read immediately before that day, are to be dealt with and disposed of pursuant to the Act as it read immediately before that day.

The main issues were: where the respondent issued a notice of revocation under the former Act and the applicant requested a referral to the Court but no such referral was made by the respondent, whether the revocation is to be determined in accordance with the provisions of the former or amended Act ; whether any of subsections 10(1), 10(3) or 10(4) of the amended Act are unconstitutional as violating paragraphs 1(

a) and 2(

e) of the Canadian Bill of Rights ; whether any of subsections 10(1), 10(3) or 10(4) of the amended Act are unconstitutional as violating

section 7 of the Canadian Charter of Rights and Freedoms ; and whether

section 10 of the amended Act subjects an individual to cruel and unusual treatment in violation of

section 12 of the Charter. Held , the applications should be allowed in part. The argument that the files of three of the applicants who received notices of intent to revoke under the former Act should be dealt with in accordance with the former revocation process was addressed. Subsection 40(1) of the SCCA is a transitional provision and states that in circumstances where a proceeding was pending before the Federal Court as a result of a referral requested by the affected individual under

section 18 of the Act, prior to the coming into force of the amended Act, the proceeding should be dealt with in accordance with the provisions of the former Act. The plain meaning of the words used therein indicates that in order for the applicants’ cases to be dealt with pursuant to the former Act, a proceeding had to be pending before the Federal Court before May 28, 2015. In this case, the applicants’ mere request to have the matter referred to the Court for adjudication under the previous scheme was not considered a proceeding pending before the Court.

Thus, even though the former citizenship revocation process began once a notice of intent of revocation was made out by the respondent, for the purposes of subsection 40(1) of the SCCA, the question was whether a proceeding was pending before the Federal Court. Accordingly, the notices issued to three of the applicants in question under the former Act were cancelled pursuant to subsection 40(4) of the SCCA.

While it was argued the delay between the time the respondent was informed of the alleged fraud or misrepresentations and the time the applicants received the notice of intent to revoke under the amended Act was unreasonable and unjustified, the delay did not warrant a stay of proceedings as a result of an abuse of process. The special circumstances resulting from the extensive fraud during 2009 and 2010 exerted substantial pressure on a system that was already saturated and overburdened. Thus, those special circumstances justified in large part the prolonged delay.

Before the alleged breaches of a fair hearing in accordance with the principles of fundamental justice were addressed, it had to be determined whether paragraph 2(

e) of the Canadian Bill of Rights applied regarding the respondent’s decision-making process. Paragraph 2 (

e) of the Bill of Rights extends beyond the protection afforded in the Canadian Charter of Rights and Freedoms and remains an operative constraint on federal activity. Therefore, the Bill of Rights continued to operate notwithstanding the Charter. The four basic conditions in order for paragraph 2(

e) of the Bill of Rights to be engaged were discussed and met in this case. Thus, pursuant to paragraph 2(

e) of the Bill of Rights, subsections 10(1), 10(3) and 10(4) of the amended Act were declared inoperative. The first requirement was met since as individuals affected by the legislation, they clearly constituted “persons” within the meaning of paragraph 2 (

e) of the Bill of Rights . As to the second requirement, the determination of an immigration officer pursuant to

section 10 of the amended Act constitutes a hearing pursuant to paragraph 2( e ). As well, given the numerous rights granted by the acquisition of citizenship and what is at stake as a result of the citizenship revocation process, citizenship revocation ought to fall within the “rights and obligations” threshold provided by paragraph 2(

e) of the Bill of Rights. The third requirement, i.e. that the process be found to violate the principles of fundamental justice, was also satisfied in this case. The nature of the decision being made and the importance of the decision to the affected individuals clearly augured in favour of a high degree of procedural fairness being owed to the applicants.

In order for the revocation process to be procedurally fair, the applicants had to be entitled to: (1) an oral hearing before a court or an independent administrative tribunal where there is a serious issue of credibility; (2) a fair opportunity to state the case and know the case to be met; and (3) the right to an impartial and independent decision maker. None of those were guaranteed under the amended Act. In particular, the disclosure provided in the amended Act is inadequate as it does not encapsulate information which may undermine the basis for the revocation.

The insufficient disclosure mandated by the amended Act thus erodes the right to know the case to be met and the right to make a defence in violation of the principles of fundamental justice. Regarding the applicants’ access to an impartial and independent decision maker, the argument that the structure under the amended Act lacked judicial independence and impartiality, whether the decision maker is in fact the respondent himself or a delegate, was accepted.

Moreover, given the importance of Canadian citizenship and the severe consequences that could result from its loss, the principles of fundamental justice require a discretionary review of all the circumstances of a case. This includes the consideration of humanitarian and compassionate grounds. Thus, the consideration of personal interests or humanitarian and compassionate factors should form part of the procedural fairness offered to affected individuals by the citizenship revocation process. The fourth requirement was also met in this case. The defect giving rise to a conflict with paragraph 2(

e) must arise by operation of a “law of Canada” not expressly declared to operate notwithstanding the Bill of Rights. The citizenship revocation regime has as its legal source the Citizenship Act , a federally enacted statute, which does not expressly declare that it operates notwithstanding the Bill of Rights. Therefore, the protections of paragraph 2(

e) applied. Consequently, the impugned provisions violated paragraph 2(

e) of the Bill of Rights since they deprived the applicants of the right to a fair hearing in accordance with the principles of fundamental justice. With respect to potential Charter violations, the impugned provisions dealing with the revocation of citizenship for fraud or misrepresentations do not infringe the right to liberty and security of the applicants and of persons in their position. Therefore, the revocation provisions are not inconsistent with

section 7 of the Charter. Interference with or a violation of a person’s right to liberty or security of the person, as defined by case law, is needed for

section 7 to be engaged. Revoking a person’s citizenship by reason of fraud or misrepresentation does not, per se , interfere with or violate that person’s right to liberty or security of the person and, as such,

section 7 of the Charter is not engaged. Although the respondent has the power to revoke the grant of citizenship as a status, it is not the revocation of citizenship per se that engages or violates liberty or security interests but rather events that could occur at a later stage; however, these would not necessarily occur in the applicants’ situation. Events that would engage the liberty or security interests protected by virtue of

section 7 of the Charter are not the necessary consequences of revoking one’s citizenship. Given this conclusion, there was no need to engage in the second part of a

section 7 Charter analysis or in the impact of

section 1 of the Charter. Concerning whether

section 10 of the amended Act subjects an individual to cruel and unusual treatment in violation of

section 12 of the Charter , the applicants had to demonstrate that they were subjected to treatment or punishment at the hands of the state and that such treatment or punishment was cruel and unusual. While deportation might come within the scope of a “treatment” in

section 12, citizenship revocation for fraud or misrepresentation does not. Even if the process for revoking citizenship for fraud or misrepresentation was considered a “treatment” for the purpose of

section 12 of the Charter, any such treatment would not be cruel and unusual. In

particular, the impugned provisions are not arbitrary, do not go beyond what is necessary to achieve their legitimate aim and do not shockthe general conscience nor are they intolerable in fundamental fairness. The applicants failed to demonstrate that the revocation ofcitizenship per se rises to the level of “cruel and unusual”. A number of questions of general importance as being dispositive of these cases and of an appeal were certified. STATUTES AND REGULATIONS CITED Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1(a), 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.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 3, 6, 7, 12. Citizenship Act, R.S.C., 1985, c. C-29, ss. 8, 10, 17, 18, 22(1)(f), 22.1. Citizenship Regulations, SOR/93-246, s. 7.2. Federal Courts Rules, SOR/98-106, r. 62. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 77(1), 115(1),(2). Strengthening Canadian Citizenship Act, S.C. 2014, c. 22, ss. 32, 40. CASES CITED APPLIED: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; Canadian National Railway Company v.Western Canadian Coal Corporation, 2007 FC 371, 63 Admin.

L.R. (4th) 283; The Queen v. Drybones, (SCC), [1970]S.C.R. 282, (1969), 9 D.L.R. (3d) 473; Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177,(1985), 17 D.L.R. (4th) 422; Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40; Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; Canada (Prime Minister) v.Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1S.C.R. 401. DISTINGUISHED: R. v.

Smith (Edward Dewey), (SCC), [1987] 1 S.C.R. 1045, (1987), 40 D.L.R. (4th) 435; Canadian Doctors for RefugeeCare v. Canada (Attorney General), 2014 FC 651, [2015] 2 F.C.R. 267. CONSIDERED: Monla v. Canada (Citizenship and Immigration), 2016 FC 1280; May v. CBC/Radio Canada, 2011 FCA 130, 231 C.R.R. (2d) 369;Canada (Citizenship and Immigration) v. Zakaria, 2014 FC 864, 30 Imm. L.R. (4th) 138; Canada (Citizenship and Immigration) v.Rubuga, 2015 FC 1073; Chabanov v. Canada (Citizenship and Immigration), 2017 FC 73, 14 Admin. L.R. (6th) 141; Duke v.

TheQueen, (SCC), [1972] S.C.R. 917, (1972), 28 D.L.R. (3d) 129; Newfoundland Telephone Co. v. Newfoundland (Board ofCommissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, (1992), 95 Nfld. & P.E.I.R. 271; Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Oberlander v. Canada (Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3, revg 2003FC 944, 238 F.T.R. 35; Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3 S.C.R. 519, (1993), 107D.L.R. (4th) 342; Oberlander v. Canada (Attorney General) (2004), 69 O.R. (3d) 187, (Sup. Ct.); Canada (Secretaryof State) v.

Luitjens (1992), 9 C.R.R. (2d) 149, 142 N.R. 173 (F.C.A.); Khadr v. Canada (Attorney General), 2006 FC 727, [2007] 2F.C.R. 218; Canada (Citizenship and Immigration) v. Houchaine, 2014 FC 342, 25 Imm. L.R. (4th) 109; Montoya v. Canada (AttorneyGeneral), 2016 FC 827, 44 Imm. L.R. (4th) 76; Canada (Minister of Employment and Immigration) v. Chiarelli, (SCC),[1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R.350; Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v.

Canada (Minister of Citizenship and Immigration),2005 SCC 51, [2005] 2 S.C.R. 539; Canada v. Sadiq, (FC), [1991] 1 F.C. 757 (1990), 39 F.T.R. 200 (T.D.). REFERRED TO: Mackay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385; Vaughan v. Canada (2000), (FC), 184 F.T.R. 197; Torre v. Canada (Citizenship and Immigration), 2015 FC 591; MacBain v. Lederman, (FCA), [1985] 1 F.C. 856, (1985), 22 D.L.R. (4th) 119 (C.A.); Benner v. Canada (Secretary of State), (SCC),[1997] 1 S.C.R. 358, (1997), 143 D.L.R. (4th) 577; Canada (Minister of Citizenship and Immigration) v.

Tobiass, (SCC), [1997] 3 S.C.R. 391, (1997), 151 D.L.R. (4th) 119; Canada (Minister of Citizenship and Immigration) v. Dueck, (FC), [1998] 2 F.C. 614, (1997), 139 F.T.R. 262 (T.D.); Canada (Citizenship and Immigration) v. Pereira, 2014 FC 574, 456F.T.R. 256; Taylor v. Canada (Minister of Citizenship and Immigration), 2006 FC 1053, 145 C.R.R. (2d) 8; League for Human Rights ofB’Nai Brith Canada v. Canada, 2010 FCA 307, [2012] 2 F.C.R. 312; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC61, [2015] 3 S.C.R. 909; Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791; Carter v.

Canada (AttorneyGeneral), 2015 SCC 5, [2015] 1 S.C.R. 331; New Brunswick (Minister of Health and Community Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R. (2d) 25; Oberlander v. Canada (Attorney General), 2016 FCA 52, leave to appeal toS.C.C. refused, [2016] 1 S.C.R. vi; Weatherall v. Canada (Attorney General), (FC), [1988] 1 F.C. 369, (1987), (FC), 59 C.R. (3d) 247 (T.D.), revd in part on other grounds, (FCA), [1989] 1 F.C. 18 (1988), 65 C.R.(3d) 27 (C.A.); Howlett v. Karunaratne (1988), (ON SC), 64 O.R. (2d) 418 (Dist.

Ct.); Canada (Attorney General) v.Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.

AUTHORS CITED Concise Oxford Dictionary . Oxford: Oxford University Press, 1990, “treatment”. Hogg, Peter W. Constitutional Law of Canada , 5th ed. loose-leaf. Toronto: Carswell, 2007. APPLICATIONS for judicial review challenging the constitutionality of the revocation or proposed revocation of the applicants’ citizenship on grounds of fraud or misrepresentation under the Citizenship Act as amended by the Strengthening Canadian Citizenship Act. Applications allowed in part. APPEARANCES Lorne Waldman , Warda Shazadi Meighen and Olivia Mann-Foster for applicant Abdulla Ahmad Hassouna.

Matthew Jeffery for applicant Tareq Madanat. Laura Best for applicant Thomas Gregory Gucake. Aris Daghighian for applicant Philipp Parkhomenko. Jacques Beauchemin for applicant Hisham Ajjawi. Mario D. Bellissimo and Jamie Boongaling for applicant Chaohui Situ. Daniel Kingwell for applicant Muhammad Shahid Bandukda. Arghavan Gerami and Seamus Murphy for applicant Sakr Marie. Mary Matthews , Jocelyn Espejo-Clarke , Meva Motwani and Nadine S. Silverman for respondent. SOLICITORS OF RECORD Waldman & Associates , Toronto, for applicant Abdulla Ahmad Hassouna. Matthew Jeffery , Toronto, for applicant Tareq Madanat.

Embarkation Law Corporation , Vancouver, for applicant Thomas Gregory Gucake. Green and Spiegel LLP , Toronto, for applicant Philipp Parkhomenko. Beauchemin Brisson , Montréal, for applicant Hisham Ajjawi. Bellissimo Law Group , Toronto, for applicant Chaohui Situ. Mamann, Sandaluk & Kingwell LLP , Toronto, for applicant Muhammad Shahid Bandukda. Gerami Law PC , Ottawa, for applicant Sakr Marie. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Gagné J.: I.

Overview [ 1 ] These applications for judicial review are brought forward by the eight applicants in lead cases challenging the constitutionality of the revocation or proposed revocation of citizenship on grounds of fraud or misrepresentation under the Citizenship Act , R.S.C., 1985, c.

C-29, as amended by the Strengthening Canadian Citizenship Act , S.C. 2014, c. 22 (SCCA). [ 2 ] Under the former revocation system, all persons who received a notice of intent to revoke their citizenship had the option to have the issue of whether they had obtained their citizenship through fraud or misrepresentation considered by this Court. The new system brought forward by the SCCA provides for two different procedures: a judicial model for complex cases, as identified by statute; and an administrative model for “non-complex” cases.

Only the administrative model is under review in these applications. [ 3 ] On January 19, 2016, this Court granted an injunction preventing the Minister of Citizenship and Immigration (now the Minister of Immigration, Refugees and Citizenship or MIRC or IRCC) from further processing cases of individuals who had received a notice of intent to revoke their citizenship but had not yet received a final decision regarding same. [ 4 ] On February 23, 2016, Justice Russell Zinn, acting as case management Judge, issued an order stating that this case-managed litigation would be proceeding by lead cases on the basis of common legal issues [ Monla v.

Canada (Citizenship and Immigration) , 2016 FC 1280 ]. All other non-lead cases are held in abeyance pending the final disposition of the lead cases. [ 5 ] Although the lead cases raise common issues, they were likely chosen for the variety of factual backgrounds they offer. [ 6 ] Some applicants (Mr. Madanat, Mr. Ajjawi, and Mr. Bandukda) have in fact had their citizenship revoked, while no decisions are

yet rendered with respect to the others whose files were caught up by the injunction rendered by this Court. [ 7 ] Some applicants (Mr. Hassouna, Mr. Madanat, and Ms. Situ) had received a notice of intent to revoke their citizenship under the previous regime and, although they had asked for their files to be referred to this Court for a factual determination, they were not. When sending a second notice of intent under the current regime, the Minister took the position that the previous notices were cancelled by virtue of the application of the transitional provisions of the SCCA .

Other applicants only received a notice of intent to revoke under the current regime. [ 8 ] Some applicants (Mr. Hassouna, Mr. Ajjawi, Mr. Parkhomenko, and Ms. Situ) would become stateless should their Canadian citizenship be revoked; others would not as they have or had dual citizenship. [ 9 ] Some applicants (Mr. Gucake, Mr. Parkhomenko, and Ms.

Situ) would become foreign nationals should they lose their citizenship—on account of the interplay between the Citizenship Act , as amended by the SCCA , and the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA [or the Act])—as the fraud or misrepresentation was made at the time they acquired their permanent residence.

On the other hand, those individuals who are alleged to have committed fraud or to have misrepresented their situation only when they applied for citizenship would revert to being permanent residents. [ 10 ] Finally, the nature of the alleged frauds or misrepresentations, which form the object of the revocations or proposed revocations, varies from one applicant to the other. Mr. Hassouna, Mr. Ajjawi, and Mr. Bandukda are said to have misrepresented details pertaining to their residency during the period immediately preceding their application for citizenship; Mr. Madanat and Ms.

Sakr’s applications for citizenship also contained alleged misrepresentations regarding their residency, however these applications were submitted on their behalf by a parent as both applicants were minors at the time; Mr. Gucake and Mr. Parkhomenko’s fathers allegedly failed to declare previous criminal convictions when they applied for permanent residence on their behalf and on behalf of their respective families; and Ms.

Situ is alleged to have omitted to declare, on her application for permanent residence based on spousal sponsorship, that she no longer lived with her sponsor and was in the process of divorcing him. [ 11 ] As these applications for judicial review do not question the reasonableness of the decisions rendered—when a decision was rendered, but rather deal with the administrative process created by the SCCA , there will be no need for a detailed review of the factual background of each application. The relevant facts will be addressed only if necessary to deal with a common issue. II.

Legal Background [ 12 ] The SCCA came into force on May 28, 2015. It amended and repealed various provisions of the Citizenship Act , resulting in material changes to the provisions regarding revocation of citizenship. For convenience of reference hereinafter the Citizenship Act as it read prior to the amendments brought by the SCCA shall be referred to as the former Act , and afterwards, as the amended Act. A. Revocation under the former Act [ 13 ] Under the former Act , an individual’s citizenship could be revoked pursuant to

section 10 where it was established that citizenship was acquired “by false representation or fraud or by knowingly concealing material circumstances”. A final decision could only be reached by the Governor in Council, based on a report by the Minister. [ 14 ] Prior to issuing a report, the Minister was required to send a notice of intention to revoke citizenship to the affected individual, outlining the grounds for revocation.

The individual could then exercise their right to have the matter referred to the Federal Court within 30 days, failing which the Minister could submit his report to the Governor in Council recommending that citizenship be revoked. [ 15 ] If the affected individual did request that the matter be referred to the Federal Court, the Minister would then bring an action in the Federal Court for a declaration that the person obtained Canadian citizenship “by false representation or fraud or by knowingly concealing material circumstances”.

The procedure before the Federal Court provided for an oral hearing and full disclosure of relevant materials in the possession of the Minister. If the Federal Court was satisfied that the Minister had established on a balance of probabilities that the individual had obtained citizenship by fraud or misrepresentations, a declaration to that effect would be issued. [ 16 ] Only when such a declaration was made by the Federal Court could the Minister issue his report to the Governor in Council. This report would be disclosed to the individual, who had the opportunity to make written submissions in response.

The Minister would consider the written submissions and attach them to the final report. The final determination was made by the Governor in Council, who could consider equitable circumstances and had the discretion to consider humanitarian and compassionate grounds when deciding whether to revoke an individual’s citizenship. B.

Revocation under the amended Act [ 17 ] Under the amended Act , an individual’s citizenship can be revoked by the Minister, pursuant to subsection 10(1) , if he “is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances”.

Requirements under subsection 10(3) of the amended Act prescribe that prior to revoking the citizenship of the individual concerned, the Minister shall provide a written notice that specifies “the person’s right to make written representations” and “the grounds on which the Minister is relying to make his or her decision”. In some circumstances, the Minister must seek a declaration from the Federal Court before revoking an individual’s citizenship.

However, and as indicated above, none of the exceptions apply in these cases. [ 18 ] Under subsection 10(4) of the amended Act , the Minister has the discretion to allow that a hearing be held if, “on the basis of prescribed factors”, he or she “is of the opinion that a hearing is required”. Pursuant to

section 7.2 of the Citizenship Regulations , SOR/93-246, the prescribed factors allow for an oral hearing where there is a serious issue of the individual’s credibility, where the individual is unable to provide written submissions, or where the grounds for revocation are related to a conviction and sentence imposed outside Canada for an offence that, if committed in Canada, would constitute a terrorism offence.

[19] Notice of the Minister’s final determination regarding the revocation of the individual’s citizenship is made in writing. There isno appeal provided under the amended Act; the sole recourse against a decision by the Minister is an application for leave for judicialreview to this Court pursuant to

section 22.1 of the Citizenship Act. C. Transitional provisions under the amended Act [20] In order to address matters which arose prior to the effective date of the amended Act, the SCCA contains transitional provisionsthat can be found at its sections 32 and 40. Most relevant to the cases before me is subsection 40(1) which provides that “[a] proceedingthat is pending before the Federal Court immediately before the day on which

section 8 comes into force, as a result of a referral undersection 18 of the Citizenship Act as that

section 18 read immediately before that day, is to be dealt with and disposed of in accordancewith that Act, as it read immediately before that day”. [21] For ease of reference, all the relevant statutory provisions are reproduced in annex to these reasons. III. Issues [22] The common legal issues to be litigated on the basis of the lead cases, as outlined by Justice Zinn and in light of the submissionsmade by the parties, are as follows: A. Are some of these applications for judicial review premature? B.

Where the Minister issued a notice of revocation under the former Act, and the applicant requested a referral to the FederalCourt but no such referral was made by the Minister, is the revocation to be determined in accordance with the provisions of the formerAct or the amended Act? C. Are any of subsections 10(1), 10(3), or 10(4) of the amended Act unconstitutional as violating paragraphs 1(

a) and 2(

e) of theCanadian Bill of Rights [S.C. 1960, c. 44 (Bill of Rights)]? D. Are any of subsections 10(1), 10(3), or 10(4) of the amended Act unconstitutional as violating

section 7 of the Charter [CanadianCharter of Rights and Freedoms]? E. Does

section 10 of the amended Act subject an individual to cruel and unusual treatment in violation of

section 12 of the Charter? F. If there is a violation of either

section 7 or

section 12 of the Charter, can it be saved under

section 1 of the Charter? IV. Analysis A. Are some of these applications for judicial review premature? [23] The respondent argues that with respect to those five applicants for whom no revocation decisions have yet been rendered (Mr.Hassouna, Ms. Sakr, Mr. Parkhomenko, Ms. Situ, and Mr. Gucake), it would be premature for this Court to consider their applicationsfor judicial review. In other words, it would be premature for this Court to decide whether the revocation process breaches theconstitutional rights of these applicants, when the administrative process under review has not yet run its course.

Doing so, says therespondent, would go against the principle that a constitutional challenge should not be adjudicated in a factual vacuum (Mackay v.Manitoba, (SCC), [1989] 2 S.C.R. 357). As a consequence, the respondent opposes those applicants’ position to rely onthe others’ factual background and legal submissions regarding different issues raised by their applications. [24] I disagree with the respondent. [25] First, in May v.

CBC/Radio Canada, 2011 FCA 130, 231 C.R.R. (2d) 369, at paragraph 10, the Federal Court of Appeal held that“[o]ngoing policies that are unlawful or unconstitutional may be challenged at any time by way of an application for judicial reviewseeking, for instance, the remedy of a declaratory judgment”.

The five applicants for whom no decision has yet been rendered as a resultof the injunction delivered by this Court are well engaged in the impugned revocation process; they were all sent a notice of intent torevoke their citizenship under the amended Act—two of them had received a notice of intent to revoke under the former Act, which waspurportedly cancelled by the new notice; they all filed written submissions with the Minister’s delegate, and; most requested and wererefused an oral hearing.

They are therefore directly affected by the matter in respect of which relief is sought. [26] Second, although it is true that constitutional challenges should not be made in a factual vacuum, it is not the case here. I have avoluminous evidentiary record before me: both parties have filed several affidavits and they conducted cross-examinations of the otherparty’s affiants.

In fact, there is sufficient evidence in the file, in terms of statistics (for example: no hearing has yet been held by aMinister’s delegate; and the Minister’s discretion was only exercised once to not revoke the citizenship of an interested person who filedwritten submissions), to strongly suggest that, absent their applications for judicial review, those five applicants would likely have hadtheir citizenship revoked. [27] Finally, it was decided during a hearing management conference that counsel for the applicants would share the time allocatedfor the hearing of these eight lead cases.

It was also decided who would be speaking to what issue. To avoid repetition, all relied on theothers’ written and oral submissions. That is quite acceptable and viewed as conducive to the proper administration of justice. As thesecases have been joined for hearing, with the consent of the respondent, it is also quite acceptable that the evidentiary record beconsidered jointly for the purpose of the declarations sought by all applicants and the assessment of the common issues. [28] I therefore conclude that none of the applications for judicial review before me are premature. B.

Where the Minister issued a notice of revocation under the former Act, and the applicant requested a referral to the FederalCourt but no such referral was made by the Minister, is the revocation to be determined in accordance with the provisions of the former

Act or the amended Act? [ 29 ] Counsel for Mr. Hassouna spoke to that issue and argued that his client’s file, and that of the two other applicants who have received a notice of intent to revoke under the former Act , should be addressed in accordance with the former revocation process. [ 30 ] He argues that

section 40 of the SCCA should be interpreted in a manner that gives a meaning to each of its subsections (1) to (4) and that it should not be interpreted such that the amended Act has a retroactive effect. He further argues that the

interpretation he suggests is compliant with the decisions of this Court in Canada (Citizenship and Immigration) v. Zakaria , 2014 FC 864 , 30 Imm. L.R. (4th) 138 [ Zakaria ] and Canada (Citizenship and Immigration) v.

Rubuga , 2015 FC 1073 [ Rubuga ]. [ 31 ] He suggests that subsection 40(1) of the SCCA , and consequently the former revocation process, apply in both of the following scenarios: i. when the notice was given under the former Act , the affected individual had requested that the file be referred to the Federal Court within the 30 days time limit, and the Minister had served and filed its statement of claim with this Court, and ii. when the notice was given under the former Act , the affected individual had requested that the file be referred to the Federal Court within the 30 days time limit, but the Minister had not yet served and filed its statement of claim. [ 32 ] Counsel for Mr.

Ajjawi supports those arguments and further pleads that, in several cases before me, there was an unreasonable and unjustified delay between the time the Minister was informed of the alleged fraud or misrepresentations and the time the applicants received the notice of intent to revoke under the amended Act . This delay far exceeds the inherent time requirement to process the matter and results in an abuse of process.

(1) Applicants concerned by those issues [ 33 ] Mr. Hassouna, a Palestinian refugee who was born in Lebanon and was granted Canadian citizenship on April 19, 2006, received a revocation notice under the former Act in February 2012. The notice followed an investigation stemming from the sponsorship applications he made for his wife and son. The investigation concluded that Mr. Hassouna was continuously residing in Kuwait during the relevant period prior to obtaining citizenship. [ 34 ] Eight days after Mr. Hassouna received the notice, he requested that the matter be referred to the Federal Court.

In the 3 years and 105 days that followed before the SCCA came into force, the Minister did not refer the matter to the Federal Court. [ 35 ] Instead, Mr. Hassouna received a second revocation notice on July 13, 2015, pursuant to the amended Act , 46 days after it came into force. The second revocation notice purports to cancel the initial revocation notice. [ 36 ] Mr. Madanat is a citizen of Jordan who became a Canadian permanent resident on August 15, 2001. He was granted Canadian citizenship on December 16, 2005. [ 37 ] On June 29, 2011, Mr. Madanat received a notice of revocation pursuant to the former Act .

He requested that the matter be referred to the Federal Court; however, in the years between the issuance of the notice of revocation and the coming into force of the SCCA , he did not receive any communication from the Minister. [ 38 ] Instead, he received a second notice of revocation in September 2015, pursuant to the amended Act . His citizenship was revoked on December 7, 2015. [ 39 ] Ms. Situ, a Chinese citizen, came to Canada as a student in 2002. She became a permanent resident on November 5, 2003, and a Canadian citizen on June 14, 2007. [ 40 ] Ms.

Situ received a notice of intent to revoke citizenship, dated July 28, 2011, pursuant to the former Act . On September 21, 2011, she requested that the matter be referred to the Federal Court. No statement of claim was filed by the Minister. [ 41 ] Instead, almost five years later, Ms. Situ received a new notice of intent to revoke citizenship, dated February 3, 2016, pursuant to the amended Act . The record demonstrates that the Minister was apprised of Ms. Situ’s date of divorce on March 2, 2007, prior to granting her Canadian citizenship in June 2007. [ 42 ] Mr.

Ajjawi only received a notice of intent to revoke his citizenship under the amended Act .

However, IRCC was aware of the alleged fraud or misrepresentation and was in possession of all the evidence necessary to initiate the revocation process as early as 2006 and yet, waited until 2015 to do so. [ 43 ] He requested that his personal circumstances be considered and cited disastrous consequences flowing from the revocation of his citizenship, such as the fact that he would be rendered stateless by the loss of Canadian citizenship, he would lose his employment in the United Arab Emirates, and in turn would be forced to return to Lebanon where Palestinians such as himself are deprived of civil rights.

The Senior Analyst refused to grant him the requested hearing and on November 30, 2015, a decision by the Minister was rendered and Mr. Ajjawi’s citizenship was revoked. [ 44 ] Messrs. Gucake and Parkhomenko also only received a notice of intent to revoke under the amended Act , but respectively after 8 and 14 years of IRCC having been made aware of the alleged fraud or misrepresentations.

(2) Transitional provisions [ 45 ] Subsection 40(1) of the SCCA states that in circumstances where a proceeding was pending before the Federal Court, as a result of a referral requested by the affected individual under

section 18 , prior to the coming into force of the amended Act , the proceeding ought to be dealt with in accordance with the provisions of the former Act.

[46] With respect, I am unable to read that provision as including the second scenario envisaged at paragraph 31 (ii) above. In myview, the plain meaning of the words used indicates that in order for these applicants’ cases to be dealt with pursuant to the former Act, aproceeding had to be pending before the Federal Court prior to May 28, 2015. A proceeding is commenced by the issuance of anoriginating document (Vaughan v. Canada (2000), (FC), 184 F.T.R. 197 (F.C.T.D.); Federal Courts Rules, SOR/98-106, rule 62).

Therefore, in order for a proceeding to be pending before this Court, a statement of claim had to be served and filed. Idisagree with the applicants that a proceeding was pending before this Court by virtue of the mere request, on their part, to have thematter referred to the Court for adjudication under the previous scheme. [47] The applicants rely on Zakaria in support of the proposition that once the Minister made allegations in the notice of intent ofrevocation, the legal process begins and the proceeding is pending. I only partially agree.

The applicants are correct to interpret Zakariato mean that once the Minister sends a notice of intent to revoke, the citizenship revocation process begins. However, I do not agree thatthis means that a proceeding is pending before the Federal Court. It is not merely a proceeding which must be pending, but rather aproceeding before the Federal Court, which is a unique prong of the former citizenship revocation process.

I do not think that a requestfor referral to the Federal Court, without more, gives rise to a proceeding which can be said to be pending before this Court. [48] The applicants also rely on Rubuga, in which this Court stated that where an applicant has taken positive action in the procedureby exercising his or her right to request that the case be referred to the Federal Court, they are deemed to have “‘already participated inthe proceeding’” (Rubuga, above, at paragraph 45).

However, this was in reference to the overall procedure to revoke the applicant’scitizenship, not the distinct adjudication proceeding before the Federal Court—the two ought not to be confounded. [49] The former citizenship revocation process began once a notice of intent of revocation was made out by the Minister. However,the question is not whether the Minister had commenced a revocation process against the applicants; for the purpose of subsection 40(1)of the SCCA, the question is whether a proceeding was pending before the Federal Court.

This, in my opinion, requires more. [50] Accordingly, the notices issued to Messrs. Hassouna and Madanat, and to Ms. Situ, under the former Act, were cancelledpursuant to subsection 40(4) of the SCCA.

(3) Unreasonable and unjustified delay [51] In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 [Blencoe], at paragraph 101, theSupreme Court of Canada held that in order for a delay to warrant a stay of proceedings as a result of an abuse of process, there must besignificant prejudice which results from that delay. [52] Before me, counsel for Mr.

Ajjawi did not argue that the fairness of the hearing was compromised as a result of the delay.Rather, he argued that this delay amounts to an abuse of process because it is clearly unacceptable and because it directly caused Mr.Ajjawi significant prejudice. Had the revocation process been initiated in 2006 when IRCC was made aware of all the relevant facts, Mr.Ajjawi’s citizenship would have been revoked under the previous process and Mr. Ajjawi could have reapplied for citizenship after fiveyears rather than after the ten-year delay provided for under the amended Act. [53] In Chabanov v.

Canada (Citizenship and Immigration), 2017 FC 73, 14 Admin. L.R. (6th) 141 [Chabanov], this Court recentlyapplied the three factors to be considered in assessing delay (Chabanov, above, at paragraph 47; Blencoe, above, at paragraph 160), tothe revocation process established by the amended Act. Those factors are: 1. The time taken compared to the inherent time requirements; 2. The causes of the delay beyond the inherent time requirements of the matter; and 3.

The impact of the delay, including prejudice and other harms. [54] In Chabanov, IRCC had waited 11 years after it had received, from the Royal Canadian Mounted Police (RCMP), a confirmationof the applicant’s overseas convictions, before initiating the revocation process. There, Justice Strickland did not feel the need to decidewhether for delay to qualify as an abuse of process, it must be part of an administrative or legal proceeding already underway, as it washeld in Torre v. Canada (Citizenship and Immigration), 2015 FC 591.

She rather found that if the whole 11-year period had to beconsidered, it was well beyond the normal time within which a matter of this nature can be concluded. She was therefore ready toconcede that the first Blencoe factor was met. I reach the same conclusion regarding Messrs. Ajjawi, Gucake, and Parkhomenko, as wellas Ms. Situ. [55] As to the second Blencoe factor, Justice Strickland found that the respondent had not provided sufficient evidence, in an affidavitfrom a legal assistant with the Department of Justice, to justify the delay.

Mere assertions by the respondent that the citizenship programwas under-resourced and had growing file inventories, and that by 2010 citizenship revocation was identified as priority, has not beenfound sufficient. [56] More substantial evidence was presented before me. According to the respondent, the citizenship program was under-resourcedand the file inventory was up to 300 files; the former revocation system—with judicial bifurcation—was simply not working.

In 2009, asa result of an RCMP investigation into a scheme involving immigration consultants who charged exorbitant fees to assist individuals inobtaining citizenship fraudulently, IRCC observed a 700 percent increase in the inventory of possible citizenship revocations. Forexample, from July 2011 to December 2011, the number of people under investigation rose from 1 800 to 2 100 and IRCC was able toprocess only 31 revocation files.

Priority shifted at IRCC and by April 2012, $600 000 was temporarily allocated to the CaseManagement Branch to provide it with the capacity to begin the revocation process for 300 cases during the 2012-2013 fiscal years.During a press conference held by the then Minister in September 2012, he noted that IRCC was investigating 11 000 individuals fromover 100 countries and had identified 3 100 Canadian citizens who were suspected of having obtained their citizenship fraudulently.

Atthat point, individuals who received notices of intent to revoke their citizenship were seeking referrals to the Federal Court in unusuallyhigh number. In sum, the respondent argues that the previous revocation process was ill-equipped to address this unanticipated increase.

[57] It could be that part of the delay in initiating and processing the citizenship revocation files of the applicants is the result of apolitical choice by the government and IRCC and priorities identified by them. [58] However, and although the applicants did not contribute to or waive part of the delay, I am of the view that the specialcircumstances resulting from the extensive fraud exposed by the RCMP during the course of 2009 and 2010 exerted substantial pressureon a system that was already saturated and overburdened.

IRCC used as efficiently as possible those resources which it had available(Blencoe, above, at paragraph 160). Thus, those special circumstances justify, in large part, the prolonged delay. [59] Since I conclude that the second Blencoe factor is not met, I do not need to fully analyze the third factor, which is the impact ofthe delay on the applicants. Suffice it to say that in my view, the evidence does not support a conclusion that Mr. Ajjawi sufferedsignificant prejudice as a result of the delay. [60] Mr.

Ajjawi’s argument that he could have reapplied for citizenship in five years rather than ten years after the revocation, had theprocess been initiated under the former Act, is merely speculative. We do not know what Mr. Ajjawi would have done without hisCanadian citizenship and without his employment in the United Arab Emirates for a period of five years. On the other hand, Mr. Ajjawiwas able to maintain his employment during the whole period because he remained a Canadian citizen.

It seems to me that in his case,the benefits outweigh the disadvantages. [61] I therefore conclude that the Blencoe factors are not met and that the delay in the initiation of the applicants’ revocation processdoes not warrant a stay of proceedings. C. Are any of subsections 10(1), 10(3), or 10(4) of the amended Act unconstitutional as violating paragraphs 1(

a) and 2(

e) of theCanadian Bill of Rights? [62] This issue was also argued by counsel for Mr. Hassouna and Mr. Ajjawi. [63] Paragraph 2(

e) of the Canadian Bill of Rights, S.C. 1960, c. 44 provides: Construction of law 2. Every law of Canada shall, unless it is expressly declared by

an Act of the Parliament of Canada that it shall operate notwithstandingthe Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgmentor infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed orapplied so as to … (

e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of hisrights and obligations; [64] Before addressing the alleged breaches of the applicants’ right to a fair hearing in accordance with the principles of fundamentaljustice, what must be determined from the outset is whether paragraph 2(

e) of the Bill of Rights applies in respect of the Minister’sdecision-making process. [65] The Bill of Rights was enacted as an ordinary statute of the Parliament of Canada applying only to federal laws. With theadoption 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 (Charter)], the Bill of Rights lost most of its importance as the majority of therights and freedoms guaranteed by it are now embedded in the Charter (Canadian National Railway Company v. Western Canadian CoalCorporation, 2007 FC 371, 63 Admin.

L.R. (4th) 283 [Canadian National Railway Company], at paragraph 18). [66] Nevertheless, two provisions of the Bill of Rights are not duplicated by the Charter; one of which is the guarantee of a fairhearing for the determination of a person’s rights and obligations, as found in paragraph 2(e). This provision extends beyond theprotection afforded in the Charter and remains an operative constraint on federal activity (Hogg, Peter W., Constitutional Law ofCanada, 5th ed. loose-leaf, Toronto: Carswell, 2007, at page 32-2).

Therefore, the Canadian Bill of Rights continues to operatenotwithstanding the Charter (MacBain v. Lederman, (FCA), [1985] 1 F.C. 856 (C.A.)). [67] In The Queen v. Drybones, (SCC), [1970] S.C.R. 282, the Supreme Court of Canada confirmed that where astatute is inconsistent with the Bill of Rights, it is to be declared inoperative, unless it expressly declares that it operates notwithstandingthe Bill of Rights. [68] In Singh v.

Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177 [Singh], at paragraph 96, theSupreme Court of Canada concluded that the following must be established in order for a breach of paragraph 2(

e) to exist: (1) andindividual’s rights and obligations fall to be determined; and (2) the individual must not have been afforded a fair hearing in accordancewith the principles of fundamental justice. [69] This Court expanded on the above conditions in Canadian National Railway Company, at paragraph 22, and established that fourbasic conditions must be met in order for paragraph 2(

e) to be engaged: 1. the applicant must be a “person” within the meaning of paragraph 2(e); 2. the arbitration process must constitute a “hearing […] for the determination of [the applicant’s] rights and obligations”; 3. the arbitration process must be found to violate “the principles of fundamental justice”; and 4. the alleged defect in the arbitration process must arise as a result of a “law of Canada” which has not been expressly declared to

operate notwithstanding the Canadian Bill of Rights. [70] For the following reasons, I agree with the applicants that the four above-mentioned conditions are met and therefore, pursuantto paragraph 2(e) [of the Canadian Bill of Rights], subsections 10(1), 10(3), and 10(4) of the Citizenship Act ought to be declaredinoperative. (a) 1st Requirement [71] The first requirement is met in this case. As individuals affected by the legislation, the applicants clearly constitute “persons”within the meaning of paragraph 2(e).

Nothing more needs to be established to meet the first requirement. (b) 2nd Requirement [72] The second condition requires that the process constitute a hearing for the determination of the applicants’ rights. A lowthreshold must be met in order for a process to be considered a “hearing” for the purpose of paragraph 2(e). According to the SupremeCourt of Canada in Authorson v. Canada (Attorney General), 2003 SCC 39, [2003] 2 S.C.R. 40, at paragraph 61, a hearing falls underthe ambit of paragraph 2(

e) of the Bill of Rights where there is “the application of law to individual circumstances in a proceeding beforea court, tribunal or similar body”. [73] In my view, a determination by an immigration officer in this case involves a decision concerning the applicants’ right tocitizenship; it involves the application of law, namely

section 10 of the amended Act, to the applicants’ individual circumstances.Therefore, the determination of an immigration officer pursuant to

section 10 of the amended Act constitutes a hearing for the purpose ofparagraph 2(

e) of the Bill of Rights. [74] In order to satisfy the second condition, the hearing must be for the determination of the applicants’ “rights and obligations”. Therespondent argues that citizenship is a privilege and not a right (Benner v. Canada (Secretary of State), (SCC), [1997] 1S.C.R. 358 [Benner], at paragraph 72; Canada (Minister of Citizenship and Immigration) v. Tobiass, (SCC), [1997] 3S.C.R. 391, at paragraph 108; Canada (Minister of Citizenship and Immigration) v. Dueck, (FC), [1998] 2 F.C. 614(T.D.) [Dueck], at paragraph 42; Canada (Citizenship and Immigration) v.

Pereira, 2014 FC 574, 456 F.T.R. 256 [Pereira], at paragraph21). Consequently, they argue that it does not attract the protection of the Bill of Rights. Respectfully, I do not agree. [75] In my opinion, citizenship is a privilege only when it has not yet been obtained. Access to citizenship, for someone to whom ithas not yet been granted, is a privilege (Benner, above, at paragraph 72). In order to be granted citizenship, the onus is on the applicant todemonstrate that they meet the requirements of the Act (Pereira, above, at paragraph 21).

In Canadian National Railway Company, atparagraph 28, this Court stated that paragraph 2(

e) has been held to be inapplicable to the granting of a mere “privilege”, such ascitizenship. [76] However, this ought not to be interpreted so as to extend to the rights associated with citizenship, once granted. Once acquired,the rights flowing from citizenship have vested. Therefore, once acquired, citizenship is a right (Taylor v. Canada (Minister ofCitizenship and Immigration), 2006 FC 1053, 145 C.R.R. (2d) 8, at paragraph 44). [77] The applicants have already obtained citizenship and as a result possess a bundle of derivative rights such as the right to vote (aright under

section 3 of the Charter), the right to enter or remain in Canada (a right under subsection 6(1) of the Charter), the right totravel abroad with a Canadian passport, and access to the Federal Public Service. These are the rights they obtain once they transitionfrom being permanent residents to citizens. [78] The balance of rights which would be lost, were the applicants to revert to foreign nationals—which is the case for the applicantswho allegedly misrepresented on their permanent residence applications—is even larger.

Those affected individuals who would becomeforeign nationals would lose, on top of the rights enumerated above, access to most social benefits that Canadians receive, such as healthcare coverage; the ability to live and work in any province (rights under subsection 6(2) of the Charter), or study anywhere in Canada;and, for a period of ten years, the ability to apply for Canadian citizenship (Citizenship Act, above, paragraph 22(1)(f)). [79] In light of the numerous rights granted by the acquisition of citizenship, and what is at stake as a result of the citizenshiprevocation process, it is clear in my mind that citizenship revocation ought to fall within the “rights and obligations” threshold providedby paragraph 2(

e) of the Bill of Rights. (

c) Third Requirement [80] I also find that the third requirement, namely that the process be found to violate the principles of fundamental justice, is satisfiedin these cases. [81] In Duke v. The Queen, (SCC), [1972] S.C.R. 917 [Duke], at page 923, the Supreme Court of Canada held thatparagraph 2(

e) requires that a federal tribunal adjudicating upon rights must “act fairly, in good faith, without bias and in a judicialtemper”, and must give a party the opportunity to adequately state his or her case (Duke, above, at page 923). [82] The jurisprudence indicates that when conducting an analysis under the Bill of Rights, one must establish the degree ofprocedural fairness owed. [83] The duty of procedural fairness varies with the context of each case, the particular statute, and the rights affected (CanadianNational Railway Company, above, at paragraph 33). In Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 [Baker], Justice L’Heureux-Dubé stated, at paragraph 21: The existence of a duty of fairness, however, does not determine what requirements will be applicable in a given set of circumstances. AsI wrote in Knight v. Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682, “the concept of

procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. All of the circumstancesmust be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal, supra, at p. 654;Old St. Boniface Residents Assn. Inc. v.

Winnipeg (City), (SCC), 1990] 3 S.C.R. 1170, per Sopinka J. [84] The Supreme Court of Canada, in Baker, identified the following non-exhaustive factors as relevant in determining the content ofthe duty of procedural fairness: 1. the nature of the decision being made and process followed in making it; 2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3. the importance of the decision to the individual or individuals affected; 4. the legitimate expectations of the person challenging the decision; and 5. the choices of procedure made by the agency itself. [85] I am of the view that the nature of the decision being made, and the importance of the decision to the affected individuals clearlyaugur in favour of a high degree of procedural fairness being owed to the applicants.

The fundamental importance of the nature of thedecision, specifically a determination of the applicants’ right to remain Canadian citizens, weighs in favour of a high degree of proceduralfairness. The revocation of citizenship “has exceptional importance to the lives of those with an interest in its result” (Baker, above, atparagraph 31). [86] Clearly, citizenship revocation is an important decision. The applicants are barred from applying for citizenship for ten yearsafter the revocation. Some will revert to foreign national status and some may even be rendered stateless.

This, along with the loss ofmany crucial rights associated with citizenship, augurs in favour of a high degree of procedural fairness. [87] Since there is no right of appeal from a revocation decision of the Minister under the amended Act, the need for proceduralfairness is all the more acute. [88] The applicants submit that the amended Act creates a discretionary regime lacking in basic procedural protections for the affectedindividuals. They contend that this is not consistent with fundamental justice as the procedural protections within subsection 10(3) of theamended Act are too minimal.

They summarize the procedural protections provided for in the amended Act as follows, at pages 20 and21 of Mr. Hassouna’s factum: They require only that (1) the person is given notice of the grounds on which the Minister is relying to make a decision and (2) isinformed of their right to make written representations within a specified period of time.

The new regime fails to afford sufficient protections to meet the requirements of natural justice for the following reasons: (1) the Actdoes not guarantee an oral hearing in all circumstances where such a hearing is necessary; (2) the Act does not guarantee a hearing beforean independent and impartial magistrate; (3) the Act does not require the Minister to disclose relevant information in his possession tothe individual; (4) by requiring that the Minister notify an individual of the grounds upon which he is relying to render his decision, butnot necessarily the evidence supporting those grounds, the Act does not guarantee the right to know the case put against one and toanswer that case; and (5) the Act does not provide for a consideration of all the circumstances of the case, but is narrowly focused ondetermining whether fraud has occurred at some stage of the immigration or citizenship application process. [89] The respondent submits that the statutory scheme in the amended Act provides individuals with sufficient protection to ensurethat the principles of fundamental justice are met. [90] I side with the applicants on this issue. [91] In order for the revocation process to be procedurally fair, the applicants ought to be entitled to: (1) an oral hearing before acourt, or before an independent administrative tribunal, where there is a serious issue of credibility; (2) a fair opportunity to state the caseand know the case to be met; and (3) the right to an impartial and independent decision maker.

None of these are guaranteed under theamended Act. [92] First, the applicants ought to be entitled to an oral hearing where there is a serious issue of credibility. Currently, subsections10(3) and 10(4) of the amended Act provide: 10 … … Notice

(3) Before revoking a person’s citizenship or renunciation of citizenship, the Minister shall provide the person with a written notice thatspecifies (

a) the person’s right to make written representations; (

b) the period within which the person may make his or her representations and the form and manner in which they must be made; and (

c) the grounds on which the Minister is relying to make his or her decision. Hearing

(4) A hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required. [93]

Section 17 of the amended Act provides that the government is not obliged to personally serve the notice referred to insubsection 10(3), nor is it required to obtain confirmation that the notice was actually received by the affected individual. The noticemay be sent by regular or electronic mail to the individual’s last known address. If the notice is not received by the individual, therevocation procedure proceeds and their citizenship may be taken away.

Therefore, in circumstances where a hearing may be necessary,the amended Act still allows for the revocation of citizenship to proceed without the individual’s knowledge of the revocationproceedings underway, and without him or her providing any written or oral submissions. [94] Subsection 10(4) is complemented by

section 7.2 of the Citizenship Regulations which states that a hearing may be held on thebasis of three prescribed factors, including “the existence of evidence that raises a serious issue of the person’s credibility”. [95] The Minister is therefore afforded a double discretion in subsection 10(4), by virtue of the wording which states that the Ministermay hold an oral hearing on the basis of the prescribed factors if he is of the opinion that a hearing is required.

This suggests that theMinister could be of the opinion that there is a serious issue of credibility, even coupled with an inability for the individual to providewritten submissions, and still could exercise his discretion to deny a request for an oral hearing. This is inconsistent with the decision ofthe Supreme Court in Singh, which stands for the principle that where there are serious issues of credibility, the opportunity to makewritten submissions would be insufficient (Singh, above). [96] Second, the applicants ought to be entitled to proper disclosure.

Under the previous regime, applicants had the opportunity torequest that their matter be referred to the Federal Court for adjudication. At this stage, applicants were entitled to full disclosure andproduction of all relevant documents within the party’s possession.

Since there is no judicial proceeding available under the amendedAct, access to full disclosure is no longer available, and there is no general disclosure requirement placed on the government. [97] Although the Minister is obliged to provide a written notice which includes “the grounds on which the Minister is relying tomake his or her decision” [paragraph 10(3)(c)], this is not sufficient. The disclosure provided in the amended Act is inadequate as it doesnot encapsulate information which may undermine the basis for the revocation, even if the Minister were in possession of it and aware ofits relevance.

Relevant information in general is also not part of the required disclosure by the Minister, as the Minister is only requiredto disclose the “grounds” on which he is relying. There is no requirement to disclose the evidence that supports those grounds. [98] I am of the view that the insufficient disclosure mandated by the amended Act erodes the right to know the case to be met andthe right to make a defence, in violation of the principles of fundamental justice. [99] Third, the applicants ought to have access to an impartial and independent decision maker.

The procedural requirements thatapply to a particular tribunal will “depend upon the nature and the function of the particular tribunal” (Newfoundland Telephone Co. v.Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623, at page 636). [100] The applicants argue that the structure under the amended Act lacks judicial independence and impartiality, whether the decisionmaker is in fact the Minister himself or a delegate.

To this, the respondent submits that the investigation, the writing of the notice, andthe determination of whether to proceed and ultimately revoke are done by three different persons and as such, the investigative andadjudicative functions are kept separate.

Even in cases where the Minister’s delegate acts in both capacities, namely sends out the noticeand renders the revocation decision, this does not demonstrate a lack of impartiality or independence. [101] I agree with the applicants in that regard. [102] The Senior Analysts only send out notices when the threshold for misrepresentation is satisfied on a balance of probabilities(cross-examination of Amélie Laporte-Lestage, at pages 70 and 99). This is the same standard required under the amended Act for therevocation of citizenship (Citizenship Act, above, subsection 10(1)).

A reasonably informed bystander could reasonably perceive bias onthe part of the adjudicator, when the adjudicator who must decide on a balance of probabilities whether a misrepresentation hasoccurred, has already determined on a balance of probabilities that a misrepresentation occurred by virtue of having sent out the initialnotice. [103] In addition to the rights enunciated above, counsel for Ms. Sakr argued that the expertise of the decision maker should be added asa component of the procedural fairness requirements. [104] In Canada (Prime Minister) v.

Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 [Khadr] [at paragraph 23], the Supreme Court of Canadadescribed as follows the analysis to be performed when assessing the principles of fundamental justice: The principles of fundamental justice “are to be found in the basic tenets of our legal system”: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 503. They are informed by Canadian experience and jurisprudence, and take into account Canada’sobligations and values, as expressed in the various sources of international human rights law by which Canada is bound. In R. v.

D.B.,2008 SCC 25, [2008] 2 S.C.R. 3, at para. 46, the Court (Abella J. for the majority) restated the criteria for identifying a new principle offundamental justice in the following manner:

(1) It must be a legal principle.

(2) There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.

(3) It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty orsecurity of the person. [105] This three-part test was also confirmed and applied in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015SCC 7, [2015] 1 S.C.R. 401 [Federation of Law Societies of Canada].

[ 106 ] Counsel for Ms. Sakr relies on Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 [ Dunsmuir ], for the proposition that the expertise principle is a legal principle embodied in our Canadian administrative law. There, the Supreme Court held that administrative decision makers are expected to render decisions that meet the standards of transparency, justifiability, and rationality.

According to the applicants, those standards could not be achieved if the decision maker does not have sufficient expertise in the particular area. [ 107 ] With respect, I do not read Dunsmuir as a confirmation that the expertise of decision makers is an established legal principle.

Rather, I view the expertise of the decision maker as a legal factor informing standards of review of administrative decision-making; it is one of the factors to be considered in the standard of review analysis. [ 108 ] Furthermore, the applicants have not established that there is a consensus that the expertise principle would be vital to our societal notion of justice.

Recognition of that principle is not critical to ensuring confidence in the administration of justice; judicial review of administrative action exists to ensure the legality, reasonableness, and fairness of the decision-making processes and their outcome. [ 109 ] In addition, the notion of expertise is, in part, a subjective concept; reasonable people may disagree on what constitutes sufficient expertise in given circumstances.

To establish strictly objective criteria in order to determine what constitutes adequate expertise in given circumstances may result in arbitrary standards, as expertise is dependent on the nature of the adjudication process and can only be observed on a spectrum; different individuals acquire expertise at a different pace. [ 110 ] For these reasons, I am of the view that the expertise principle should not be recognized as a principle of fundamental justice. [ 111 ] Finally, in addition to the above, counsel for Mr.

Madanat argued that fundamental justice requires a consideration of equitable or humanitarian and compassionate grounds in citizenship revocation cases. The applicants are of the view that the Citizenship Act should specifically state that the decision maker needs to consider an affected individual’s personal situation when humanitarian and compassionate grounds are at stake. [ 112 ] The respondent replied that the revocation process does not exclude and therefore allows the consideration on equitable grounds and that in fact, Mr.

Madanat somehow was afforded such a consideration. [ 113 ] I agree with the applicants. [ 114 ] The former Act guaranteed that at the last step of the process, once this Court had found that citizenship was acquired by fraud or misrepresentation or by concealing relevant facts, there was residual discretion afforded to the Governor in Council to review the entire situation in light of all the facts and, if appropriate, to reject the Minister’s recommendation ( League for Human Rights of B’Nai Brith Canada v. Canada , 2010 FCA 307 , [2012] 2 F.C.R. 312 ( Odynsky ), at paragraph 81 ).

This wide discretion included the discretion to consider the case on humanitarian and compassionate grounds—in fact, Justice Décary preferred the use of the expression “‘personal interests’”, and a decision that failed to formally recognize and consider those factors when raised was considered unreasonable ( Oberlander v. Canada (Attorney General) , 2004 FCA 213 , [2005] 1 F.C.R. 3, at paragraphs 57 and 58 ). [ 115 ] Under the amend

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