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IN THE MATTER OF the Citizenship Act, |
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R.S.C., 1985, Chap. C-29; and |
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IN THE MATTER OF an appeal from the |
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decision of a Citizenship Judge; and |
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[1] The applicant seeks to set aside the citizenship judge's decision dated April 23, 1997 whereby she declined to approve his application for Canadian citizenship, because he had not accumulated at least three years' residence in Canada of the immediately preceding that application. The tally made for his file reveals that of those four years or 1460 days, he was absent 1201 days, instead of the 365 days permitted by Parliament, a deficit of 836 days or 2.3 years! That was an absence of 2.3 years out of four, or more than half the time away. |
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[2] One wonders if it was only time of residence on which the citizenship judge ought to have declined approval. The appellant evinced an inadequate knowledge of either official language at the hearing in this Court, despite the help of an interpreter/translator, when giving viva voce testimony. Of course, given the shortfall of time residing in Canada, there is little wonder that he displayed so inadequate a knowledge of English, the official language of his choice. |
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[3] Some say that the required residence of 1095 days out of 1460 is too rigid, insensitive and strict, despite the fact that Parliament in paragraph 5(1)(c) countenances a legitimate absence of up to one year in four. There is also section 5(4) of the Act, of which, more later. |
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[4] The appellant and his counsel agreed that computation of days of residence and of absence above noted is correct. |
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[5] The appellant's counsel likened this case to those of students, perhaps overlooking that Mr. Pourghasemi, whose case the citizenship judge cited, was a student. She quoted an apt passage from the appeal judgment in Re Pourghasemi (1993) 62 F.T.R. 122, 19 Imm. L.R. (2d) 259: |
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"That provision exacts that the applicant must have 'within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada ...'. Parliament introduces an element of emphasis into the statutory text by enacting '... at least three years of residence in Canada ...'. Those emphasized words are unnecessary, except for emphasis. The appellant accumulated less than one year, before the date of his application for citizenship. In drawing a purposive interpretation of the statutory language it should be asked: Why did Parliament prescribe at least three years of Canadian residence in the four years immediately before applying for citizenship? |
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It is clear that the purpose of the paragraph 5(1)(c) is to ensure that everyone who is granted precious Canadian citizenship has become, or at least has been compulsorily presented with the everyday opportunity to become 'Canadianized'. |
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The statute does not direct the Court to evince sentimentality in order to evade, or to defy the statutory requirement for residence. Perhaps because of misunderstanding to this Court's previous jurisprudence, applicants seem to be advised to keep Canadian bank accounts, magazine subscriptions, medicare cards, lodgings, furniture, other property and good intentions to meet the statutory criterion, in a word, everything except really residing among Canadians in Canada for three out of the previous four years, as Parliament prescribes.". |
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One does not, of course, grant citizenship to inanimate personal property, magazine subscriptions or furniture while the owner sojourns abroad. |
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[6] The judicial administration of the residence qualifications in paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, Chap C-29, has been vexed for at least two decades. Over that time Parliament has been quite constant in maintaining the text of the legislation, even unto this day, thus: |
| 5.(1) The Minister shall grant citizenship to any person who
(a) * * *
(b) * * *
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
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5.(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois:
a) * * *
b) * * *
c) a été légalement admise au Canada à titre de résident permanent, n'a pas depuis perdu ce titre en application de l'article 24 de la Loi sur l'immigration, et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante:
(i) un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent,
(ii) un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent;
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This is about as straightforward a legislative text as Parliament has ever enacted. |
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[7] The word "residence" or "resident" appears to have given some flights of fancy to some judges over the years, but it too is a most straightforward word. It does not signify absence, but rather, presence. The English-language words mean the same as the French-language words. There is no difference of concept. |
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[8] The Gage Canadian Dictionary - revised and expanded, 1988, gives these meanings: |
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reside v. -sided, -siding. 1 live (in or at) for a long time; dwell. 2 be (in); exist (in); Her charm resides in her happy smile. |
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residence n. 1 a place where a person lives; house; home. 2 the act of residing; living; dwelling. 3 a period of residing in a place. 4 the fact of living or doing business in a place for the performance of certain duties, to comply with certain regulations, or to qualify for certain rights and privileges: a writer in residence. They have not been in residence long enough to apply for citizenship. 5 a building in which students, nurses, etc. live. |
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in residence, a living in a place: The owner of the house is not in residence. b living in an institution while on duty or doing active work there: a doctor in residence. |
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resident n., adj. - n. 1 a person living in a place, not a visitor. 2 a physician during residency, especially one who has completed internship. 3 an official sent to live in a foreign land to represent his or her country. 4 formerly, a representative of the British Governor General of India at a native court. 5 a bird or animal that is not migratory. 6 a person living or doing business in a place in order to comply with certain regulations, or qualify for certain rights or privileges. |
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-adj. 1 staying; dwelling in a place. A resident owner lives on his or her property. 2 living in a place while on duty or doing active work. 3 not migratory: English sparrows are resident birds. 4 of qualities, present; intrinsic; inherent. 5 of a person, living or doing business in a place in order to comply with certain regulations, or to qualify for certain rights or privileges. |
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[9] The Oxford Dictionary of Current English, 1990, reveals this: |
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reside v.i. have one's home or dwell permanently (in specified place); (of power or right etc.) be vested in; (of quality) be present or inherent in |
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residence n. residing (take up residence); place where one resides, abode of; house esp. of considerable pretension; in residence dwelling at specified place esp. for performance of duties or work |
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resident 1 n. permanent inhabitant (of place); guest of hotel staying overnight. 2a. having quarters on the spot (resident housekeeper); residing in residence; located in (feeling resident in the nerves). |
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[10] Le Petit Robert - nouvelle édition * * * mise à jour pour 1998 states the following: |
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résidant, ante adj. (résident, 1283; n.m., "habitant", 1415; de résider). Qui réside (en un lieu). V. Habitant. Spécialt. (1846) Membre résidant d'une académie, d'une société savante (opposé à correspondant). |
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résidence n.f. (1271; lat. résidentia). 1 Séjour effectif et obligatoire en un lieu; obligation de résider. Emploi, charge qui demande résidence. La résidence d'un magistrat, d'un évêque. - Par ext. Durée de ce séjour. Spécialt. Résidence forcée, surveillée (d'une personne astreinte par décision de justice à rester dans un lieu). 2 (1283). Le fait de demeurer habituellement en un lieu; ce lieu. V. Demeure, habitation, séjour. "Durant les cinq ans de ma résidence . . ." (Baudel). Avoir, établir, fixer sa résidence quelque part. Changer sa résidence. "Les maisons semblaient être de résidence bourgeoise" (Romains). Résidence virilocale. Dr. Lieu où une personne habite effectivement durant un certain temps (ou a un centre d'affaires, d'activités), sans y avoir nécessairement son domicile. Certificat de résidence. Résidence principale. Cour. (sens 3e) Résidence secondaire: maison de campagne, de vacances ou de week-end. 3 (1840). Lieu construit, généralement luxueux, où l'on réside. V. Demeure, logement, maison. "Plus d'un, en apercevant ces coquettes résidences, si tranquilles, enviait d'en être le propriétaire" (Flaub). Une somptueuse résidence (V. Résidentiel). "Il reçoit dans cette résidence princière le feuilletonniste d'un de nos grands journaux" (Balz.) (v. 1960) Groupe d'immeubles résidentiels assez luxueux. La Résidence X ... 4 Charge de résident; lieu (ville, bâtiments) où habite un résident, où se tiennent ses services. La Résidence de Rabat (à l'époque du protectorat). |
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résider v. intr. (v. 1380); lat. residere). 1 Être établi d'une manière habituelle dans un lieu; y avoir sa résidence (surtout admin., dr. ou didact.) "Les ambassadeurs ... prennent les moeurs du pays où il résident (Chateaub.). Les étrangers qui résidaient aux États-Unis. 2 Fig. Avoir son siège, exister habituellement, se trouver (dans tel lieu, en telle personne ou telle chose). "Le principe de toute souveraineté réside essentiellement dans la Nation" (Déclar. Dr. Hom). "L'ordre idéal des peuples réside dans leur bonheur" (Camus). V. Consister. La difficulté réside en ceci. |
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[11] The above cited dictionaries all reveal that the French and English words are derived from a common Latin root, and they all connote abiding or dwelling in a certain place (or country) by living there and being present there, not absent. |
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[12] Is Parliament rigid or insensitive in making residence requirements for those who apply for citizenship? It could be if it chose, but it does not seem to be cruel or rigid in enacting the above recited provisions of section 5 of the Act. |
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[13] To provide that an applicant for citizenship may validly be absent from Canada one year in four, or one month in four during the previous four years is not at all and certainly not unduly rigid or insensitive in this judge's opinion. It does not make a "prisoner" in Canada of a would-be citizen. It does mean that whoever applies for citizenship must be ready to do so, and must regard such application seriously enough to make some small self-sacrifice in order to acquire citizenship. |
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[14] Why have a residence requirement at all? It seems clear to this judge that Parliament declines to accord Canadian citizenship to foreigners; but requires residence in Canada during three of the four years immediately preceding the date of the application in order to "Canadianize" the would-be citizen. Maybe some can achieve that goal in fewer days than Parliament has prescribed but the prescription is for Parliament alone to propound, not for the applicant and not for the judiciary. |
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[15] While the purpose of paragraph 5(1)(c) is clear, it is noteworthy that Parliament does not mention the word "Canadianize" (if it be a word), but rather asserts years, composed of days of residence. |
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[16] Since 1982 and the enactment of the Canadian Charter of Rights and Freedoms (all honour be to it), judges have been empowered in the appropriate circumstances, to set aside, "read down" or "up", and where necessary, sometimes virtually to amend legislation. Sometimes that notion of judicial omnipotence "slops" over into the everyday duties and thinking of some judges. |
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[17] This Court is not a social-working establishment, nor yet an institute of applied psychology whose duty is to make all applicants feel good. When an applicant's expectations are pitched too high for, and out of accord with, Parliament's legislative provisions, then (so long as judges do not purport to amend that legislation), the applicant's high hopes or outlaw expectations will just have to be dashed. There is no curial joy in that, but possibly responsibility must fall on the applicant's advisers, and of course on Parliament itself. So the Court must not bend the law, even to help the applicant to feel good, even sparing him or her frustration, justifiable as such frustration is. Nor does judicial duty require that judges "look good", or appear to be lords and ladies bountiful. |
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[18] Canada proclaims itself to be a democratic country, but democracy itself is imperilled when judges arrogate the rôle of legislators. It makes a mockery of the citizenship judges' care and attention to their duties. |
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[19] To give away citizenship to those who do not take the trouble to comply with the provisions solemnly enacted by Parliament is not only a kind of lèse majesté, but it just cheapens Canadian citizenship. Serious, sincere applicants simply must comply with the law, in common with everyone else, whether they like it or not. What a terrible message this Court sends, by overruling a citizenship judge, in granting someone citizenship by defeating Parliament's will! The Court does not make itself look good by that sort of false bounty. It does not foster respect for the law. |
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[20] It appears clearly that all of the foregoing is not merely judicial speculation or prattle. Parliament has been amending the Citizenship Act from time to time since the promulgation of the revised statutes. It has not taken any occasion to enact any provision whatever regarding the residence rules, to make any exception or provide for the granting of citizenship to any applicant who |
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- would likely be a good citizen, but fails to comply with paragraph 5(1)(c); |
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- has "centralized" his or her "lifestyle" in Canada because of any circumstance, but is absent; |
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- has sent or deposited his or her personal property (i.e. bank account, clothing, automobile, etc.) to reside in Canada, while the applicant is absent from this country; |
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- has become "Canadianized" in less time than the prescribed three of the immediately previous four years; |
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- needs to be out of Canada on business or whatever for longer than one year of the immediately previous four years; |
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- has a spouse and/or children or other family members who are already citizens. |
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[21] This trend of ignoring the law as Parliament wrote it seems to have started with Papadogiorgakis [1978] 2 F.C. 208. Although that case was decided by an eminent judge of the day, the decision is not binding simply because there is no appeal from these citizenship appeal judgments. This factor can create, and does still create a scandalous incertitude in the law. After all, at p. 75 of the very same volume of the Federal Court Reports, there is the decision of Khoury, adjudicated by an equally eminent judge of the day who came to the exactly opposite conclusion, and the dichotomy has continued to this very day. |
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[22] As noted, during all this time Parliament has many times amended the Act, up to S.C. 1997, Chap. 22, parts of which came into force as recently as May 20, 1997. The last amendment of the residence rules in section 5, which amendment evinces Parliament's will, was by S.C. 1987, Chap. 53, assented to on December, 1987. It runs: |
| 1.. Section 5 of the Citizenship Act is amended by adding thereto, immediately after subsection (1) thereof, the following subsection:
(1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1).
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1. La Loi sur la citoyenneté est modifiée par insertion, après le paragraphe 5(1), de ce qui suit:
(1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)(c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son conjoint alors que celui-ci étant citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province.
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[23] As if the residence rules had not already been clear enough Parliament (not the judiciary) threw a bit more light on them by enacting the above recited amendment. It provides, in effect, that an applicant can "Canadianize" himself or herself by living with a Canadian spouse posted abroad and gain residence day by day. That, and all, residence under the Act is gained by three out of four years consisting of days of presence - not absence. When Parliament thinks of the qualifying period or term of residence, it thinks of residence acquired day by day, not of absence, but of presence; not of sending personal property, but of personal presence; not of centralizing one's lifestyle, but of living day after day after day in Canada, until the requisite number of days qualifies an applicant pursuant to subsections 5(1) or (1.1). Subsection (1.1) is the only exception whereby an applicant can be "Canadianized" while residing outside of Canada, but with a Canadian spouse, day in, day out. |
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[24] No doubt, an applicant who fails to achieve citizenship will not feel good about it, but that is strictly not this Court's business. It is Parliament's business. Parliament thinks of days of presence to constitute residence. |
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[25] The Court is not a legislature. The Court can shape the modelling clay of common law and equity, but the statutes of Parliament are cast in stone, unless and until Parliament repeals or amends them, (or violates the Charter). When the cabinet last attempted to legislate without the benefit of Parliamentary enactment, it was this Court which nullified that unlawful effort: Saskatchewan Wheat Pool v. Canada (Attorney General) (1994) 67 F.T.R. 98, paras. 67, 68 & 69. This Court should do no less than observe the standards which it sets. |
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[26] In the Supreme Court of Canada, in R. v. McIntosh [1995] 1 S.C.R. 686, the majority disposition at p. 702 quoted with favour the principle eloquently stated by Mr. Justice La Forest, then of the New Brunswick Court of Appeal in New Brunswick v. Estabrooks Pontiac Buick Ltd. (1982) 44 N.B.R. (2d) 201, as follows, at p. 210: |
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"There is no doubt that the duty of the courts is to give effect to the intention of the Legislature as expressed in the words of the statute. And however reprehensible the result may appear, it is our duty if the words are clear to give them effect. This follows from the constitutional doctrine of the supremacy of the Legislature when acting within its legislative powers. The fact that the words as interpreted would give an unreasonable result, however, is certainly ground for the courts to scrutinize a statute carefully to make abundantly certain that those words are not susceptible of another interpretation. For it should not be readily assumed that the Legislature intends an unreasonable result or to perpetrate an injustice or absurdity. |
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This scarcely means that the courts should attempt to reframe statutes to suit their own individual notions of what is just or reasonable.". |
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[27] Therefore, the appeal against the citizenship judge's decision on lack of adequate days of prescribed residence must be dismissed, as it is. |
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[28] There are now those who say that the exact application of paragraph 5(1)(c) is too rigid, as if Parliament did not know what it was doing. Subsection 5(4), however, tells one that Parliament was well aware that a literal application inter alia of paragraph 5(1)(c) " even allowing one year in four, or one month in four of absence " could create "cases of special and unusual hardship". Parliament conferred a unique discretion on the citizenship judge, but not on this Court, in subsection 15(1) of the Act . It runs: |
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15. (1) Where a citizenship judge is unable to prove 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.". |
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[29] In this instance the citizenship judge failed to abide by the mandate imposed in subsection 15(1). Therefore this matter must be remitted to her, or in her absence from the rôle, to another citizenship judge, to finish the job by making some disposition, according to her appreciation of the appellant's case, pursuant to section 15. Nothing prevents the citizenship judge, if she so decides, but is not obliged to, from perusing a transcript of the appeal hearing, if she or the other judge thinks it is needed. |
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1) the appeal on residence requirement is dismissed; and |
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2) the matter is referred back as stated in this Court's reasons, above, for some appropriate disposition pursuant to subsection 15(1) of the Act. |
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Vancouver, British Columbia |
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1183-97
| STYLE OF CAUSE: IN THE MATTER OF the Citizenship Act, R.S.C., 1985, Chap. C-29; and |
| IN THE MATTER OF an appeal from the |
| decision of a Citizenship Judge; and |
Appellant.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 30, 1998
REASONS FOR JUDGMENT OF THE COURT BY: MULDOON, J.
DATED: February 5, 1998
APPEARANCES:
Andrew Z. Wlodyka for Appellant
| Julie Fisher for amica curiæ |
SOLICITORS OF RECORD:
Andrew Z. Wlodyka for Appellant
| Lawrence Wong & Associates |
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