Canada (Minister of Citizenship and Immigration) v. Jeannot, docket T-2341-97

     Date: 19990428

     Docket: T-2341-97

Ottawa, Ontario, the 28th day of April 1999

Present:      The Honourable Mr. Justice Pinard

     IN THE MATTER OF THE Citizenship Act,

     R.S.C., 1985, c. C-29

     AND IN THE MATTER OF an appeal from the decision

     of a citizenship judge

     AND IN THE MATTER OF

     The Minister of Citizenship

     and Immigration

     Appellant

     - and -

     Germaine Jeannot

     Respondent

     JUDGMENT

     The appeal from citizenship judge Gordana Caricevic Rakovich"s decision dated September 2, 1997, is allowed, the decision in question is quashed, and the respondent"s application for citizenship is denied.

                             YVON PINARD

                             JUDGE

Certified true translation

Peter Douglas

     Date: 19990428

     Dossier: T-2341-97

     IN THE MATTER OF THE Citizenship Act,

     R.S.C., 1985, c. C-29

     AND IN THE MATTER OF an appeal from the decision

     of a citizenship judge

     AND IN THE MATTER OF

     The Minister of Citizenship

     and Immigration

     Appellant

     - and -

     Germaine Jeannot

     Respondent

     REASONS FOR JUDGMENT

PINARD J.:

[1]      This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the Act), against citizenship judge Gordana Caricevic Rakovich"s decision dated September 2, 1997, granting the respondent Canadian citizenship.

[2]      Born in Haiti on March 20, 1924, the respondent became a permanent resident of Canada on August 31, 1993. She lives with her Canadian son, Claude Jeannot. In the four years immediately preceding her application for citizenship, dated December 3, 1996, the respondent returned to Haiti on a number of occasions to help her daughter in times of childbirth.

[3]      In fact, from August 31, 1993, to December 3, 1996, the respondent was away from Canada for 606 days, and was physically present in Canada for only 585 days. She was thus 510 days short of the required 1 095 days equivalent to three years of residence in Canada. Paragraph 5(1)(c) of the Act sets out those residence requirements, which read:

5. (1) The Minister shall grant citizenship to any person who . . . (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:

5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : [...] 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) 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;

(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.

[4]      My brother Mr. Justice Muldoon articulated the underlying purpose of paragraph 5(1)(c) of the Act in Re Pourghasemi (1993), 19 Imm. L.R. (2d) 259,¹ at page 260:

. . . 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." This happens by "rubbing elbows" with Canadians in shopping malls, corner stores, libraries, concert halls, auto repair shops, pubs, cabarets, elevators, churches, synagogues, mosques and temples - in a word wherever one can meet and converse with Canadians - during the prescribed three years. One can observe Canadian society for all its virtues, decadence, values, dangers and freedoms, just as it is. That is little enough time in which to become Canadianized. If a citizenship candidate misses that qualifying experience, then Canadian citizenship can be conferred, in effect, on a person who is still a foreigner in experience, social adaptation, and often in thought and outlook. If the criterion be applied to some citizenship candidates, it ought to apply to all. So, indeed, it was applied by Madam Justice Reed in Re Koo , T-20-92, on December 3, 1992 [reported (1992), 59 F.T.R. 27, 19 Imm. L.R. (2d) 1], in different factual circumstances, of course.

(See also Re Afandi (November 6, 1998), T-2476-97 (F.C.T.D.) and M.C.I. v. Kam Biu Ho (November 24, 1998), T-19-98 (F.C.T.D.).)

[5]      As mentioned above, the respondent was some 510 days short of the required 1 095 days of residence in Canada.

[6]      Assuming that a proper interpretation of paragraph 5(1)(c) of the Act does not require physical presence in Canada for the entire 1,095 days of residence prescribed therein when there are special and exceptional circumstances, I consider, however, that actual presence in Canada remains the most relevant and crucial factor to be taken into account for establishing whether or not a person was "resident" in Canada within the meaning of the provision. As I have stated on many occasions, too long an absence from Canada, albeit a temporary one, during that minimum period of time, as in the present case, is contrary to the spirit of the Act, which already allows a person who has been lawfully admitted to Canada for permanent residence not to reside in Canada during one of the four years immediately preceding the date of that person"s application for citizenship.

[7]      I must therefore find, despite the sympathy I feel for the respondent"s situation, that she does not meet the residence requirements set out in the Act. In my view, by deciding otherwise, the citizenship judge erred in the application of paragraph 5(1)(c ) of the Act.

[8]      Accordingly, the appeal is allowed, the decision of the citizenship judge is quashed, and the respondent"s application for citizenship is denied.

                             YVON PINARD

                             JUDGE

OTTAWA, ONTARIO

April 28, 1999

Certified true translation

Peter Douglas

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-2341-97

STYLE OF CAUSE:          Minister of Citizenship and Immigration

                 v. Germaine Jeannot

PLACE OF HEARING:      Montréal, Quebec

DATE OF HEARING:      March 25, 1999

REASONS FOR JUDGMENT OF PINARD J.

DATED:              April 28, 1999

APPEARANCES:

Daniel Latulippe                              FOR THE APPELLANT

Montréal, Quebec

Germaine Jeannot                              FOR THE RESPONDENT

Montréal, Quebec

Jean Caumartin                              AMICUS CURIAE

Montréal, Quebec

SOLICITORS OF RECORD:

Department of Justice                              FOR THE APPELLANT

Montréal, Quebec

Germaine Jeannot                              FOR THE RESPONDENT

Montréal, Quebec

Jean Caumartin                              AMICUS CURIAE

Montréal, Quebec

__________________

¹      See also the decision of the same judge in Chen (January 21, 1998), T-2879-96.