Date: 19980106
Docket: T-167-97
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
Wing Man Amanda Lam,
Appellant.
REASONS FOR JUDGMENT
MULDOON, J.:.
[1] The facts of this case are remarkably analogous to those of the case of Papadogiorgakis [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, which appears to be a leading reference in this and other appeals regard the length-of-residence qualification for citizenship expressed in paragraph 5(1)(c) of the Act. The Papadogiorgakis decision, although crafted by a highly respected now retired Associate Chief Justice of this Court, is not binding on this Court, because there was and is no provision for appeal both then and now, and there is accordingly no binding jurisprudence, unfortunately.
[2] Despite having been decided before judges got into bad habits after promulgation of the Canadian Charter of Rights and Freedoms (all honour to it), the Papadogiorgakis judgment stretched the application of paragraph 5(1)(c) as it now is. The Charter, of course, permits judges to strike down, stretch, or compress duly enacted legislation in cases where such legislation conflicts with the Charter, but not in all or any other cases, such as the present case.
[3] In such other cases, judges must remember that the judiciary is not a social-working, or a please-you-lest-you-feel-bad type of institution and therefore judicial restraint is much called for. The appellant's counsel astutely reminded the Court of this judge's decision in Hotchand Paramanand Badlani [1984] 1 F.C. 1145 (digested), in which it was stated that one should not stretch the application of Papadogiorgakis. Badlani was also founded on a reasonable desire for judicial consistency in these residence cases, but that desire has, in the meanwhile, along with the desired consistency, been all blown to smithereens.
[4] Here, however, the appellant while pursuing studies at Cornell University at Ithaca, New York, drove back to the family residence in Toronto at least once per month, long weekends and holidays prior to completing her course in May, 1996. She established close parallel with the Papadogiorgakis case, which case is not stretched by applying it herein. Papadogiorgakis ought not to be extended because: (a) strictly speaking it was not correctly
decided; and (b) judges have no power to legislate against the manifest will of Parliament, which never authorized ignoring paragraph 5(1)(c) of the Act.
[5] The present state of affairs wherein the Trial Division of this Court is riven between strict constructionists and lax constructionists must be very confusing for Citizenship Judges and for the law profession.
[6] Nevertheless, on the facts of this case as presented in documents and testimony, and thanks to the submissions of counsel and of the amicus curiae, the appeal is allowed with no disrespect for the Citizenship Judge.
[7] These appeals are said to be proceedings de novo, with the exception of the Citizenship Judge's exclusive discretion pursuant to subsections 5(3) and (4): Khat (1991) 49 F.T.R. 252 (Stayer, J.). Therefore, that which the Citizenship Judge ought to have done pursuant to subsection 14(2), shall be done, namely: to approve the appellant's application for citizenship, notify the Minister accordingly and provide the Minister with a copy of these reasons.
"F.C. Muldoon"
Judge
Toronto, Ontario
January 6, 1998
FEDERAL COURT OF CANADA
Date: 19980106
Docket: T-167-97
BETWEEN:
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
Wing Man Amanda Lam,
Appellant.
REASONS FOR JUDGMENT
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-167-97
STYLE OF CAUSE: 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
Wing Man Amanda Lam,
DATE OF HEARING: JANUARY 5, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
BY: MULDOON, J.
DATED: JANUARY 6, 1998
APPEARANCES: Mr. Cecil L. Rotenberg, Q.C.
For the Appellant
Mr. Peter K. Large
Amicus Curiae
SOLICITORS OF RECORD: Mr. Cecil L. Rotenberg, Q.C.
Barrister and Solicitor
Suite 808
255 Duncan Mill Road
Don Mills, Ontario
M3B 3H9
For the Appellant
Mr. Peter K. Large
Barrister and Solicitor
610-372 Bay Street
Toronto, Ontario
M5H 2W9
Amicus Curiae
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