Date: 20040322
Docket: T-1490-99
Citation: 2004 FC 429
Ottawa, Ontario, March 22, 2004
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
ALEBACHEW WODAJIO, also known as
AL WODAJIO, by his next friend,
the Regional Public Guardian for the Province of Alberta
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to rule 300 of the Federal Court Rules, 1998 (SOR/98-106) (Rules) in respect of an appeal under subsection 14(5) of the Citizenship Act, R.S.C., c. C-29 (Act). The Public Guardian for the Province of Alberta (the applicant) seeks an order to quash the decision of the Citizenship Judge dated June 21, 1999.
FACTS
[2] Mr. Wodajio, then a citizen of Ethiopia, emigrated to Canada in 1981 and was granted refugee status by the Canadian government. He was relocated in Red Deer, Alberta, where he started developing mental health problems. He was admitted to the local psychiatric hospital where he was diagnosed as suffering from paranoid schizophrenia. He was discharged into the community after treatment and in May 1982, he killed his social worker. He was found not guilty by reason of insanity in August 1982, and has been under a warrant of the Lieutenant-Governor ever since.
[3] Mr. Wodajio was treated in the forensic service of Alberta Hospital Edmonton, where Dr. Tweedle became his attending psychiatrist, which she has remained until now. Most of the facts related here are drawn from her reports or the affidavit of Mr. Bob Mitchell, who acts for the Public Guardian of Alberta on Mr. Wodajio's behalf.
[4] Through the course of his treatment, Mr. Wodajio made some progress. He became a Canadian citizen in 1988. In 1993, he gained permission to visit his family in Ethiopia. He was given permission to visit for one month. On his return to Canada, his condition worsened. He had been living in the community at that time, but he was readmitted into the hospital, where he refused treatment though he had sought help because he felt persecuted. In 1994, he was placed under public guardianship and treated. The order of the court granting guardianship dealt only with medical treatment.
[5] Mr. Wodajio grew obsessed with the idea of returning to live in Ethiopia, where, he was convinced, he would be healthy. His endeavours to renounce his Canadian citizenship began in 1996. He was able to retain and instruct a lawyer to act for him. A consulting psychiatrist (not Dr. Tweedle) certified in 1999 that he understood the significance of the renunciation. On June 21, 1999, he was granted a Certificate of Renunciation of his Canadian citizenship.
[6] The Public Guardian sought immediately to have the guardianship order amended to include the right to decide where Mr. Wodajio would live, and the right to act legally for him on matters of citizenship. These proceedings before the Surrogate Court of Alberta were opposed by Mr. Wodajio through his lawyer. The instant appeal was stayed pending a resolution of the matter. After a lengthy process, the Court of Appeal of Alberta finally delivered a judgement granting the Public Guardian the authority to act on Mr. Wodajio's behalf, and recognizing the validity of the order of the Surrogate Court which had given the Public Guardian authority over where Mr. Wodajio should reside and what decision should be made in regards to his citizenship.
ISSUE
[7] Should the decision of the Citizenship Judge to grant the Certificate of Renunciation of Canadian citizenship be quashed?
ANALYSIS
[8] A flurry of legal issues have been raised in the context of this application, but I believe the matter can be stated somewhat more simply. The respondent has raised a number of technical issues that fail, in my mind, to impede the application. The respondent submitted that there could not be an appeal by the applicant of a decision in his favour. However, subsection 14(5) of the Act does contemplate an appeal of the decision of the Citizenship Judge, whether positive or negative. The respondent further submitted that once the certificate of renunciation was issued, the decision was final, and could not be revoked. Since the certificate was issued the very same day that the decision was given, the right of appeal would not exist if the issuance of the certificate were to abolish the right of appeal. Such a reading would make the law absurd, an entirely unsatisfactory result of faulty construction. Finally, the respondent contended that since the citizenship had been revoked in 1999, it could not be reinstituted except in accordance with the Act. I believe, however, that if the decision of the Citizenship Judge were to be quashed, then Mr. Wodajio's citizenship would never have been renounced, and Mr. Wodajio would still remain a Canadian citizen.
[9] The crux of the matter is whether at the time of the decision of the Citizenship Judge, Mr. Wodajio had the legal capacity and the mental ability to make the application. The only other condition which could have prevented granting the renunciation, the fact that he was residing in Canada, contrary to paragraph 9(1)(d), was considered by the Judge and referred to the Minister for decision, in compliance with section 15. Presumably the Minister waived the requirement, on the recommendation provided by the Judge June 17, 1999, so that the decision of the Judge on June 21 was lawfully made, and the certificate lawfully issued (insofar at least as the requirements of paragraph 9(1)(e) were satisfied).
[10] The applicant has ably demonstrated, in my opinion, that had the guardianship applied to matters of legal consequences and citizenship on June 21, 1999, the order granting the application of renunciation would be invalid. At that date, the guardianship order covered only medical care; the applicant has argued that medical concerns should apply to the citizenship proceedings, since Mr. Wodajio's departure for Ethiopia would mean an end to proper psychiatric care.
[11] The court order of the Honourable Justice Smith of the Surrogate Court of Alberta, dated October 11, 1994 gave authority to the Public Guardian as guardian of Mr. Wodajio only in regards to consent to health care. The Dependent Adults Act is very clear: in making the order, the court is to specify the extent of the authority granted to the guardian. Under subsection 10(3), specific heads of authority are provided. The authority is given to the guardian if it is stated in the order. Paragraph (a) refers to where the dependent adult is to live; paragraph (g) refers to any legal proceedings that do not have to do with the dependent adult's estate. Those provisions were not included in the 1994 order.
[12] Mr. Wodajio's efforts to renounce his Canadian citizenship so as to return or be deported to Ethiopia date back to 1996. According to his attending psychiatrist's report, returning to Ethiopia had become an obsession. His efforts were not exactly secret. The following quote comes from Dr. Tweedle's lengthy report dated August 16, 1999:
In the past, during the earlier part of Mr. Wodajio's stay in Alberta Hospital, he did escape lawful custody and eventually turned himself in to the authorities in Ontario. He was detained in hospital for a lengthy period following that and subsequently learned that he must deal with matters legally. Al has pursued a lot of legal avenues open to him and takes every opportunity approaching any new visitor (such as local MLA's, MP's, etc.) to the unit, new administrator's (sic), new managers, new team members, to solicit their help in returning to Ethiopia.
In many respects, clearly Mr. Wodajio is able to solicit and direct legal help. The area however, that is of great concern to me, is that the motivation behind this activity is driven by symptoms of his illness into which he is completely in sightless. It is certain that his illness will continue wherever he is placed geographically.
[13] I have carefully reviewed the decision of the Citizenship Judge that stands on one page of the Tribunal's Record. The reasons read:
Mr. Wodajio is in Canada at the pleasure of the Lt. Governor of Alberta under warrant, held in hospital. He does not have the freedom to travel to Ethiopia to apply for renunciation while residing outside of Canada. I have spoken today to his solicitor who has provided the above information.
[14] The Tribunal Record is sixty-two pages, containing different documents.
[15] Among those documents there is a copy of a report by Dr. William McCay, which report is dated October 1, 1996, and another letter from the same Dr. McCay dated February 11, 1999, more than two years later. In the latter, Dr. McCay specifically states that the second letter is a review of his previous report of 1996.
[16] There is no mention of a report by Mr. Wodajio's attending physician. I note that in a letter dated October 11, 1996, from Mr. Norman Sabourin, Registrar of Canadian Citizenship addressed to Mr. James Joosse, attorney for Mr. Wodajio at the time, there was a specific reference to a statement from his attending physician and I quote:
In addition, he must provide a statement from his attending physician attesting to his mental ability to understand the significance of renouncing citizenship.
[17] We also have in the Tribunal Record two references including the one in the decision itself, to telephone conversations with the applicant's counsel who provided some information to the Judge. On page 10 of the Record there is a note with the written signature of the Citizenship Judge and I quote:
17/6/99
Spoke to James Joosse - Mr. Wodajio's lawyer - Explained to me circumstances of residence of Canada. Signature
[18] The other quote and reference to a telephone conversation is the one I quoted earlier in the decision.
[19] We should at least be concerned that a decision about the renunciation of citizenship be based on a thorough examination of all factual and legal evidence.
[20] In her decision, the Citizenship Judge mentioned specifically that she knew of the warrant of the Lt. Governor of Alberta and that she was aware that Mr. Wodajio, the applicant, was being held in a hospital.
[21] The two reports by Dr. McCay, in my view, raise questions rather than provide answers. In the 1996 report, Dr. McCay wrote (page 46, Tribunal Record):
In my opinion, this man suffers from chronic paranoid schizophrenia, with his symptoms in partial remission on antipsychotic medications. It is my opinion that his concerns regarding staff and his treatment at Alberta Hospital are delusionally based, given that he has shown similar concerns at points in the past while ill, and stopped feeling that way when his symptoms remitted on moderately high dose of Flupenthixol intra-muscularly. The symptoms returned when the dose was reduced.
Given his continued symptoms of paranoid schizophrenia, his lack of insight, and his history of having behaved violently in the past while ill, I feel that this treating psychiatrist has been prudent in recommending continued hospitalization and antipsychotic treatment. I recommend no changes in his status or privileges at this time.
[22] In the 1999 report, on which basis the Citizenship Judge decided that Mr. Wodajio had a sufficient understanding of the significance of renouncing his Canadian citizenship, Dr. McCay wrote (p. 14, Tribunal Record):
In my opinion, Mr. Wodajio continues to display features of chronic paranoid schizophrenia and he continues to lack insight into his condition. He does not feel that he needs ongoing medication for control of his condition. In these respects, he is no different than when I assessed him in 1996.
. . . He understands that renouncing his Canadian citizenship is a significant step, and that the consequences of this is that the Ethiopian government will then issue him the necessary documents to return to his country. He showed me communication from the Ethiopian government outlining exactly that. He realizes that once he makes this decision that he will no longer be a citizen of Canada, and will have to return to a country that has none of the social programs such as welfare to support him and that he would be dependent on his family's support if he were unable to work.
In my opinion therefore, that Mr. Wodajio does appreciate the significance and consequences of renouncing Canadian citizenship.
Despite coming to the same conclusion, therefore, as to Mr. Wodajio's need for treatment, Dr. McCay is of the opinion that Mr. Wodajio appreciates the significance of renouncing his Canadian citizenship.
[23] Mr. Sabourin from the Immigration Department had specifically requested that Mr. Wodajio provide a statement from his attending physician. It is difficult to understand how Dr. McCay could be seen by the Citizenship Judge as his attending physician, given that Mr. Wodajio was held in a hospital and would probably see his attending physician more than once every two to three years. The reports show that Mr. Wodajio does not want to take his medication, believing that he does not need it. However, the report also suggests that medication has to be provided because his health condition will improve only if medication is taken.
[24] I am also concerned with the fact that the Citizenship Judge based her opinion on one particular telephone conversation with Mr. Wodajio's counsel, but did not indicate anything about the content of those discussions. There is no reference to any document or any specific information regarding the health situation of Mr. Wodajio.
[25] I have no hesitation to conclude that there were some major elements that were missing in the file when the Citizenship Judge made her decision. Documents were provided by the applicant himself and information was provided by his counsel over the phone. There is no evidence whatsoever that the Citizenship Judge was informed that Mr. Wodajio was under an order appointing the Public Guardian as guardian in some capacity. Even though at the time of the hearing the order appointing the Public Guardian did not, strictly speaking, cover such matters as renouncing citizenship, it is obvious that such a decision would have a significant impact on the state of his health if he was going to be deported to Ethiopia.
[26] I have no doubt that Mr. Wodajio knowingly concealed material circumstances concerning his legal capacity and mental disability in his application for renunciation of citizenship. Under the guardianship order, Mr. Wodajio had no authority to make decisions concerning his health care; yet, by arranging to be deported from Canada, Mr. Wodajio was effectively by-passing the court order that granted the Public Guardian the authority to ensure he would receive proper medical treatment. Treatment for his condition will simply not be available in Ethiopia.
[27] I agree with counsel for the applicant that if the Citizenship Judge had had proper information as to Mr. Wodajio's medical and legal status she would not have granted the application to renounce Canadian citizenship. I do not believe Mr. Wodajio's mental disability allowed him to fully comprehend the significance of renouncing his Canadian citizenship, and a letter from his attending physician, as requested by Immigration Canada, would have confirmed this fact.
[28] The applicant has argued that by not taking into account the court order which applied to Mr. Wadajio at the time of the decision, the Citizenship Judge exceeded her jurisdiction, since for all intents and purposes, by granting the renunciation, she cancelled the effect of the court order. I would agree. Moreover, this excess of jurisdiction justifies admitting new evidence that was not before the Citizenship Judge. Although an appeal under subsection 14(5) is not a trial de novo (Lam v. MCI, [1999] F.C.J. No. 410), the Federal Court of Appeal stated that in a statutory appeal, evidence which was not before the decision-maker could be received, if this evidence went to the jurisdiction of the decision-maker (Ontario Association of Architects v. Association of Architectural Technologists of Ontario, 2002 FCA 218).
[29] In Lam, Chief Justice Lutfy concluded, after reviewing the various factors that apply to the standard of review, that a subsection 14(5) appeal must be reviewed on a standard of correctness, albeit somewhat deferential. Given that the issue of jurisdiction is a question of law that a court is in a better position to analyse than the Citizenship Judge, who needs no legal training to be appointed, I think that in the instant case too the standard is one of correctness. In assessing the renunciation application without delving further into the circumstances of the applicant, namely, the reason why the attending physician was not providing information, and without inquiring as to the circumstances of treatment under the Lieutenant-Governor's warrant, which would have revealed the guardianship order as to treatment, the Citizenship Judge made a decision without regard to the relevant information. Because of the guardianship order, the Citizenship Judge could not make a decision that would have a direct impact on the treatment of Mr. Wodajio, the very object of the guardianship order.
[30] I have no hesitation to quash the decision of the Citizenship Judge dated June 21, 1999.
[31] Given that the decision of the Citizenship Judge was void ab initio for lack of jurisdiction, Mr. Wodajio never lost his Canadian citizenship. He was and remains a Canadian citizen.
ORDER
THIS COURT ORDERS that:
- The decision of the Citizenship Judge dated June 21, 1999, is quashed;
- The renunciation is deemed to have had no effect.
"Pierre Blais"
Judge
ANNEX "A"
Legislation
| 9. (1) A citizen may, on application, renounce his citizenship if he
(a) is a citizen of a country other than Canada or, if his application is accepted, will become a citizen of a country other than Canada;
(b) is not the subject of a declaration by the Governor in Council made pursuant to section 20;
c) is not a minor;
(d) is not prevented from understanding the significance of renouncing citizenship by reason of the person having a mental disability; and
(e) does not reside in Canada.
(2) The Minister may, in the Minister's discretion, waive on compassionate grounds the requirements of paragraph (1)(d) or (e).
(3) Where an application for renunciation is approved, the Minister shall issue a certificate of renunciation to the applicant and the applicant ceases to be a citizen after the expiration of the day on which the certificate is issued or such later day as the certificate may specify.
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9. (1) Peut demander à répudier sa citoyenneté le citoyen qui :
a) possède une nationalité étrangère ou l'obtiendra si sa demande de répudiation est acceptée;
b) n'est pas visé par une déclaration du gouverneur en conseil faite en application de l'article 20;
c) n'est pas un mineur;
d) n'est pas incapable de saisir la portée de répudier sa citoyenneté en raison d'une déficience mentale;
e) ne réside pas au Canada.
(2) Pour des raisons humanitaires, le ministre a le pouvoir discrétionnaire d'exempter les intéressés des conditions prévues aux alinéas (1)d) ou e).
(3) Une fois la demande de répudiation approuvée, le ministre délivre un certificat de répudiation au demandeur, lequel perd sa citoyenneté soit à l'expiration du jour de délivrance du certificat, soit à la date ultérieure qui y est indiquée.
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| 14. (1) An application for
(a) a grant of citizenship under subsection 5(1),
(b) a retention of citizenship under section 8,
c) a renunciation of citizenship under subsection 9(1), or(d) a resumption of citizenship under subsection 11(1)
shall be considered by a citizenship judge who shall, within sixty days of the day the application was referred to the judge, determine whether or not the person who made the application meets the requirements of this Act and the regulations with respect to the application.
. . .
(2) Forthwith after making a determination under subsection (1) in respect of an application referred to therein but subject to section 15, the citizenship judge shall approve or not approve the application in accordance with his determination, notify the Minister accordingly and provide the Minister with the reasons therefor.
. . .
(5) The Minister or the applicant may appeal to the Court from the decision of the citizenship judge under subsection (2) by filing a notice of appeal in the Registry of the Court within sixty days after the day on which
(a) the citizenship judge approved the application under subsection (2); or
(b) notice was mailed or otherwise given under subsection (3) with respect to the application.
(6) A decision of the Court pursuant to an appeal made under subsection (5) is, subject to section 20, final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. |
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14. (1) Dans les soixante jours de sa saisine, le juge de la citoyenneté statue sur la conformité -- avec les dispositions applicables en l'espèce de la présente loi et de ses règlements -- des demandes déposées en vue de :
a) l'attribution de la citoyenneté, au titre du paragraphe 5(1);
b) la conservation de la citoyenneté, au titre de l'article 8;
c) la répudiation de la citoyenneté, au titre du paragraphe 9(1);
d) la réintégration dans la citoyenneté,au titre du paragraphe 11(1).
[...]
(2) Aussitôt après avoir statué sur la demande visée au paragraphe (1), le juge de la citoyenneté, sous réserve de l'article 15, approuve ou rejette la demande selon qu'il conclut ou non à la conformité de celle-ci et transmet sa décision motivée au ministre.
[...]
(5) Le ministre et le demandeur peuvent interjeter appel de la décision du juge de la citoyenneté en déposant un avis d'appel au greffe de la Cour dans les soixante jours suivant la date, selon le cas :
a) de l'approbation de la demande;
b) de la communication, par courrier ou tout autre moyen, de la décision de rejet.
(6) La décision de la Cour rendue sur l'appel prévu au paragraphe (5) est, sous réserve de l'article 20, définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel. |
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| 15. (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require.
(2) Where a citizenship judge makes a recommendation for an exercise of discretion under subsection (1), the judge shall
(a) notify the applicant;
(b) transmit the recommendation to the Minister with the reasons therefor; and
c) in accordance with the decision that has been made in respect of his recommendation, forthwith on the communication of the decision to the judge approve or not approve the application.
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15. (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas.
(2) S'il recommande l'exercice du pouvoir discrétionnaire, le juge de la citoyenneté :
a) en informe le demandeur;
b) transmet sa recommandation motivée au ministre;
c) approuve ou rejette la demande dès réception de la réponse du ministre, en se conformant à la décision prise par celui-ci à l'égard de sa recommandation.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1490-99
STYLE OF CAUSE: Alebachew Wodajio, also known as Al Wodajio, by his
next friend, the Regional Public Guardian for the
Province of Alberta v. The Minister of Citizenship and
Immigration
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: March 09, 2004
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Blais
APPEARANCES:
Ms. Wendy A. Danson For Applicant
Mr. Brad Hardstaff For Respondent
SOLICITORS OF RECORD:
McCuaig Desrochers LLP For Applicant
Edmonton, Alberta
Morris Rosenberg For Respondent
Deputy Attorney General of Canada