Date: 19981029
Docket: T-2408-97
BETWEEN:
| IN THE MATTER OF THE Citizenship Act, |
| AND THE MATER OF an appeal from the |
| decision of a Citizenship Judge |
Appellant
REASONS FOR JUDGMENT
EVANS J.:
[1] This is an appeal from a Citizenship Judge's decision that the appellant, Mr. Adolphus Beckles, has not satisfied the statutory residence requirement for Canadian citizenship, in that "within the four years immediately preceding the date of his application" for citizenship, Mr. Beckles had not "accumulated at least three years of residence in Canada calculated" in accordance with paragraphs (i) and (ii) of subsection 5(1)(c) of the Citizenship Act. The Judge found that the appellant had satisfied the other statutory requirements for citizenship.
[2] The Judge made an error in calculating the number of days of residence accumulated by Mr. Beckles prior to his application for citizenship. The Judge found that Mr. Beckles had been convicted of theft in 1991, and had been put on probation for two years. Subsection 21(a) of the Citizenship Act provides that no period may be counted as a period of residence during which a person is under a probation order. However, it is clear from the copy of the probation order filed by the appellant that in fact he was convicted of a different offence, namely assault, and was put on probation for one year.
[3] Unfortunately for Mr. Beckles, he still does not satisfy the residence requirement of paragraph 5(1)(c) of the Act, even though he has been physically present in Canada since 1989, with the exception of a short vacation.
[4] Mr. Beckles applied for citizenship on August 30th, 1994, so that the relevant period is the four years immediately preceding that date. It is relevant to note that Mr. Beckles was granted permanent residence status in Canada on January 18th, 1991, having entered Canada as a visitor in August 1989. Paragraph 5(1)(c)(i) of the Citizenship Act provides that each day of a person's residence in Canada prior to becoming a permanent resident shall be counted as a half day for the purpose of determining whether a person has accumulated three years of residence immediately preceding the citizenship application.
[5] Hence, on my calculation, Mr. Beckles has accumulated the following days of residence in the four years prior to August 30th, 1994: (i) from January 28, 1993 until August 30th, 1994, 580 days; (ii) from January 28, 1992 until January 27, 1993, while he was on probation, 0 days; (iii) from January 18, 1991 to January 27, 1992, 375 days; and (iv) from August 29th, 1990 to January 17, 1991, when he was not a permanent resident, 71 days (i.e. half of the 142 actual days in this period). This gives him a total of 1,026 days of residence, which is 69 days short of the 1,095 days required to satisfy section 5(1)(c).
[6] In the absence of any evidence of exceptional circumstances, I must conclude that Mr. Beckles has not satisfied the requirements for citizenship. Since he has failed to qualify by virtue of the combined effect of the year that he was on probation and the fact that for part of the four year period he was not a permanent resident, the three months' "grace period" given to those who are temporarily absent from Canada within the four year period does not apply. I recognize that this is a somewhat paradoxical result, given that the appellant has been physically present in Canada continuously since 1989, with the exception of a two-week vacation. Nonetheless, on the clear wording of the Act, Mr. Beckles did not meet the residence qualification when he applied for citizenship. He applied too soon.
[7] On the evidence before me there is no reason to doubt that a fresh application for citizenship would not be successful. The appeal is dismissed.
"John M. Evans"
Judge
TORONTO, ONTARIO
October 29, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2408-97
| STYLE OF CAUSE: THE CITIZENSHIP ACT |
- and -
DATE OF HEARING: WEDNESDAY, OCTOBER 28, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT: EVANS J.
| DATED: THURSDAY, OCTOBER 29, 1998 |
APPEARANCES: Mr. Peter Large
Amicus Curiae
Mr. Adolphus Beckles
For the Appellant
SOLICITORS OF RECORD: Peter Large
Suite 610
372 Bay Street
Toronto, Ontario
M5H 2W9
230 Oak Street
Apt. #1806
Toronto, Ontario
M5A 2E2
For the Appellant
FEDERAL COURT OF CANADA
Date: 19981029
Docket: T-2408-97
IN THE MATTER OF THE Citizenship Act,
| AND THE MATER OF an appeal from the |
| decision of a Citizenship Judge |
Appellant
REASONS FOR JUDGMENT
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