Edwards v. Canada (Minister of Citizenship and
Immigration)
Between
Fiona Jane Edwards, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Fiona Jane Edwards, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 777
2014 FC 748
Docket: T-1731-13
Federal Court
Edmonton, Alberta
Roy J.
Heard: June 10, 2014.
Judgment: July 28, 2014.
Docket: T-1731-13
Federal Court
Edmonton, Alberta
Roy J.
Heard: June 10, 2014.
Judgment: July 28, 2014.
(29 paras.)
JUDGMENT AND REASONS
1 ROY
J.:-- Fiona Jane Edwards, the applicant, seeks to appeal, pursuant to
subsection 14(5) of the Citizenship Act, RSC, 1985, c C-29 [the Act], the decision of a Citizenship Judge,
on September 3, 2013, to refuse her Canadian citizenship application.
2 The
facts of the case are simple and undisputed. The applicant is a citizen of the
United Kingdom. She immigrated to Canada on March 3, 2003. Mrs Edwards is the
mother of a child born on June 1, 2002. The daughter is a citizen of the United
Kingdom and Canada. The applicant acquired permanent resident status on March
15, 2005. The application for citizenship was made on May 15, 2009. Given her
frequent absences from Canada for work and vacations, the applicant had
accumulated 892 days of physical presence in Canada.
3 Section
5 of the Act provides for the conditions under which citizenship shall be
granted. It is paragraph 5(1)(c) that is relevant for our purposes:
Grant of citizenship
(1) The Minister shall
grant citizenship to any person who
...
is a permanent resident
within the meaning of subsection 2(1) of the Immigration and Refugee Protection
Act, and has, within the four years immediately preceding the date of his or
her application, accumulated at least three years of residence in Canada calculated
in the following manner:
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
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;
* * *
Attribution de la citoyenneté
(1) Le ministre attribue
la citoyenneté à toute personne qui, à la fois:
...
est un résident
permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la
protection des réfugiés 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:
un demi-jour pour
chaque jour de résidence au Canada avant son admission à titre de résident
permanent,
un jour pour chaque
jour de résidence au Canada après son admission à titre de résident
permanent
4 In
her decision, the Citizenship Judge concluded that the relevant period in order
to assess the residence requirements was May 15, 2005 to May 15, 2009, the day
she made her application. Given that permanent residence was acquired some two
months before the application to become a citizen was made, Mrs Edward showed
an early interest in being awarded the Canadian citizenship.
5 However,
by making her application so early after becoming a permanent resident, the
applicant fell short of the number of days of residence found in paragraph
5(1)(c). Out of the 1460 days during that period, between May 15, 2005 and May
15, 2009, it is not disputed that the applicant was 203 days short as the Act
seems to require at least 1095 days out of 1460 days. At 892 days, the
applicant was in Canada 61% of 4 years. Indeed, the shortfall of 203 days is
close to 20% short of the target.
6 In
the case at hand, the Citizenship Judge considered the availability of three
accepted tests for residency and chose the one requiring the physical presence
for 1095 days out of 1460 days. There was no ambiguity in the choice that was
made. The Citizenship Judge also specifically declined to make favourable
recommendations to waive some requirements under subsection 5(3) and for a discretionary
grant of citizenship under subsection 5(4) in special circumstances, concluding
that there was no evidence to justify such a recommendation.
7 The
applicant takes issue with the choice made by the Citizenship Judge to pick a
test, one dubbed "physical presence", which resulted in the decision
to dismiss her application for citizenship. She claims that the use of the
criteria found in Re Koo, [1993]
1 FC 286 [Koo], another test that
is available and has been used by some judges in some circumstances, should
have produced a different result in view of her circumstances and justification
for not meeting the threshold of 1095 days.
8 It
will not be necessary to examine what standard of review should apply and
whether or not the Koo criteria
could have been satisfied in this case because I have concluded that the
Citizenship Judge was entitled to decide to rely on the "physical
presence" test as she did.
9 Mrs
Edwards does a remarkable job of presenting the views of some of my colleagues
who have lamented the availability of different tests to Citizenship Judges.
That has made some conclude that the Koo test ought to prevail. With great respect, I disagree.
10 In
spite of what would appear to many to be the intent of Parliament that a person
be physically present, Thurlow ACJ ruled in Re
Papadogiorgakis, [1978] 2 FC 208 [Papadogiorgakis], that it would be possible to
consider a different period of time because the word "residence" is
not defined in the Act. Residence does not require physical presence as long as
the person has centralized her mode of living somewhere in Canada.
11 I
would have thought that Parliament's intent could rather easily be deciphered.
I find it difficult to accept that deemed residence is possible where a non-permanent
resident is allowed, through a formula, one-half day of residence for every day
that person is residing in Canada. Parliament's intent, surely, is that the
non-permanent resident be in Canada for that residence to count as half for the
purpose of being granted citizenship. The alternative would lead to an
absurdity: a non-permanent resident could be credited on half-day of residence
for residing outside of Canada. The purposive examination of the provision
would lead me to conclude that Parliament intended physical presence to be the
test. It is difficult to see how a complete absence from Canada can count when
Parliament has expressed itself so clearly by even providing for a formula in
certain circumstances. If for non-permanent residents only physical presence in
Canada can satisfy the formula, I would have thought that the same physical
presence would have applied to permanent residents: one cannot require physical
presence for one class of applicants (non-permanent residents) and not for
another (permanent residents).
12 Actually
the use of the word "shall" in the chapeau of subsection 5(1), which
commands an imperative (Interpretation Act, RSC, 1985, c I-21, section 11), suggests that Parliament did not
intend to confer a broad discretion to Citizenship Judges, as the Papadogiorgakis decision allows and the Koo, supra, decision suggests to a lesser extent. To my way of thinking, a
construction put on paragraph 5(1)(c) which would allow someone to spend barely
79 days in Canada, like in Papadogiorgakis, supra, hardly
conforms to a statute that speaks in terms of "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".
13 Indeed,
Reed J in Koo, supra, seems to have recognized that the
amendments to the Act in 1978 did not show an intent that physical presence for
the whole three-year period was not required. She writes at page 292:
·
I have read the Parliamentary
debates and committee proceedings of that period and can find nothing to
substantiate that conclusion. Indeed, quite the contrary seems to be the case.
The requirement of three-year residence within a four-year period seems to have
been designed to allow for one year's physical absence during the four-year
period. Certainly, the debates of the period suggest that physical presence in
Canada for 1,095 days was contemplated as a minimum. In any event, as has been
noted above, the jurisprudence which is now firmly entrenched does not require
physical presence for the whole 1,095 days.
14 Without
further analysis, Reed J leaves the issue hanging and rather concludes that the
jurisprudence "is now firmly entrenched" and it "does not
require physical presence for the whole 1,095 days." She then proceeds to
suggest a series of questions in order to assist in the determination of
"whether Canada is the country in which he or she has centralized his or
her mode of existence." (page 293)
15 I
note in passing that Reed J relies on the physical presence significantly in
many of the questions that should be considered under the test she devised.
Question 4 puts the issue squarely: "What is the extent of the physical
absences -- if an applicant is only a few days short of the 1,095-day total it
is easier to find deemed residence than if those absences are extensive?"
16 I
find myself in general agreement with Muldoon J in Re
Pourghasemi, [1993] 62 FTR 122, a decision which came
after Papadogiorgakis, supra, and Koo, supra, and considered
both. After commenting that Papadogiorgakis, supra,
"stretches the meaning of paragraph 5(1)(c) of the present Citizenship Act almost beyond
recognition" (para 5), Muldoon J, in his colourful way, proposes the
following rationale for his reading of the section that Parliament meant an
accumulation of three years of residence:
·
6 So those who would throw in
their lot with Canadians by becoming citizens must first throw in their lot
with Canadians by residing among Canadians, in Canada, during three of the
preceding four years, in order to Canadianize themselves. It is not something
one can do while abroad, for Canadian life and society exist only in Canada and
nowhere else.
17 I
share the view of Muldoon J that the reference in subsection 5(1) of "at
least three years of residence in Canada" signals that Parliament meant
physical presence. He said:
·
3 It is clear that the purpose
of paragraph 5(1)(c) is to insure that everyone who is granted precious
Canadian citizenship has become, or at least has been compulsorily presented
with the everyday opportunity to become, "Canadianized".
18 It
is not overly surprising that the debate, involving three different ways to
interpret the test of residence in the Act, has remained unresolved. Now that
Bill C-24, An Act to amend the Citizenship Act and
to make consequential amendments to other Acts, 2nd
Sess, 41st Parl, 2014 (assented to 19 June 2014), SC 2014, c 22 (short title
being Strengthening Canadian Citizenship Act), has received Royal Assent, one hopes that the uncertainty has
disappeared (see clause 3 of the Strengthening Canadian
Citizenship Act which replaces paragraph 5(1)(c)).
19 What
is a Citizenship Judge to do in those circumstances? Justice Lutfy, before he
became Chief Justice of this Court, in Lam v Canada
(Minister of Citizenship and Immigration), [1999] F.C.J.
No. 410, ruled that Citizenship Judges may apply any of the three tests. Lutfy
J was followed by Pelletier J, as he then was, in Canada
(Minister of Citizenship and Immigration) v Mindich,
(1999) 170 FTR 148 [Mindich].
20 There
have been some views expressed in the last few years proposing that the Court
depart from the position expressed in 1999 that it is for the Citizenship Judge
to decide on the approach to be chosen. As put aptly by Pelletier J,
"[t]he function of the judge sitting in appeal is to verify that the
Citizenship Judge has properly applied the test of his or her choosing." (Mindich, para 9)
21 Starting
perhaps with Canada (Minister of Citizenship and
Immigration) v Chuang, 1999 CanLII 8716 (FC), where it
was suggested that the test most favourable to the applicant ought to be used,
a certain jurisprudence has developed that the Koo test is to be preferred. Such a view found an articulation in Canada (Citizenship and Immigration) v Takla,
2009 FC 1120. In that case, Mainville J, as he then was, wrote:
·
[47] Although I am of the view
that the test of physical presence for three years maintained by the first
jurisprudential school is consistent with the wording of the Act, it appears to
me preferable to promote a uniform approach to the interpretation and application
of the statutory provision in question. I arrive at this conclusion in an
attempt to standardize the applicable law. It is incongruous that the outcome
of a citizenship application is determined based on analyses and tests that
differ from one judge to the next. To the extent possible, coherence in
administrative decision making must be fostered, as Mr. Justice Gonthier
properly indicated in IWA v. Consolidated-Bathurst
Packaging Ltd., [1990] 1 S.C.R. 282, at page 327:
·
It is obvious that coherence in
administrative decision making must be fostered. The outcome of disputes should
not depend on the identity of the persons sitting on the panel for this result
would be "[TRANSLATION] difficult to reconcile with the notion of equality
before the law, which is one of the main corollaries of the rule of law, and
perhaps also the most intelligible one": Morissette, Le contrôle de la compétence d'attribution: thèse, antithèse and
synthèse (1986), 16 R.D.U.S. 591, at p. 632.
22 In
Wong v Canada (Citizenship and Immigration), 2008 FC 731, Phelan J had, the year before, found that the
"strict physical presence test has become of limited, if any, use and
would (if it were the appropriate test) hardly require the involvement of a
citizenship judge in the mathematical calculation of physical presence."
(para 24) Harrington J, in Canada (Citizenship and
Immigration) v Salim, 2010 FC 975, found that if the
threshold of 1095 days of residence in Canada has not been met, the judge had
to consider the Koo test.
Similarly, Barnes J in Ghaedi v Canada (Citizenship and
Immigration), 2011 FC 85, expressed the view that he
preferred the line of cases following Takla, supra, although he
reckoned that "there will continue to be two lines of divergent authority
on this issue and others may be quite properly disposed to follow Lam,
above." (para 16)
23 Scott
J, as he then was, followed the approach advocated in Takla, supra, in his
decision in Khan v Canada (Citizenship and Immigration), 2011 FC 215. There has also been some variation on that theme.
Mactavish J, in Cardin v Canada (Citizenship and
Immigration), 2011 FC 29, recognized that there are
three approved residency tests. It would seem that the choice of tests is not
as free as the Lam case proposes:
"If the underlying rationale for the application of a particular test is
not present on the facts of the case, then the application of the test simply
does not make sense. That is, it is not reasonable." (para 18)
24 With
great respect, I cannot follow this line of cases. I find it impossible to
relegate what I believe is the clear language of section 5 in order to apply
the Koo test. I would have
thought that the Koo test is
useful in cases where the applicant is very close to the 1095-day threshold and
the Citizenship Judge does not want to rely on a recommendation to the
executive branch of Government, in accordance with subsection 5(4) of the Act
(subsection 5(4) gives discretion to the Governor in Council for citizenship to
be granted without meeting the conditions precedent; the new subsection 5(4),
once Bill C-24 has been proclaimed into law, grants that same discretion in the
Minister.) It is ironic that the preference for the Koo test would be based on the need to standardize the applicable law as
the uncertainty comes from judge-made-law created in spite of what, to some,
would appear to be an unambiguous legislative pronouncement. Even the author of
the Koo test recognized that
Parliament's intent may well be the physical presence test.
25 Part
of the rationale for espousing the Koo test was that the uncertainty in the law
was seen as becoming permanent (see Tackla, supra, at para 46).
With the passage of Bill C-24, a temporary situation would appear to have been
finally remedied.
26 I
cannot find any reason to do away with the physical presence test (Pourghasemi, supra). The existence of some case law to a different effect does not
change the clear wording of para 5(1)(c) of the Act(see also Murphy v Canada (Citizenship and Immigration),
2011 FC 482). The Chief Justice of this Court reviewed carefully our
jurisprudence in Huang v Canada (Citizenship and
Immigration), 2013 FC 576. He concluded:
·
[24] What is clear from the
foregoing is that the jurisprudence pertaining to the test(s) for citizenship
remains divided and somewhat unsettled.
·
[25] In this context, it is
particularly appropriate that deference be accorded to a citizenship judge's
decision to apply any of the three tests that have a long and rich heritage in
this Court's jurisprudence.
27 In
my view, once the Citizenship Judge has settled on the test to be applied, the
role of a judge of this Court is limited to ensuring that the test has been
properly applied. "Blending" is not appropriate (Shubeilat v Canada (Citizenship and Immigration), 2010 FC 1260; Rousse v Canada (Citizenship
and Immigration), 2012 FC 721; Sinanan
v Canada (Citizenship and Immigration), 2011 FC 1347).
28 The
initial decision to rely on one test is however one that the Citizenship Judge
could make. I share the view of Rennie J expressed at paragraph 53 of the
decision in Martinez-Caro v Canada (Citizenship and
Immigration), 2011 FC 640:
·
[53] It is my opinion that Re Pourghasemi is the interpretation that
reflects the true meaning, intent and spirit of subsection 5(1)(c) of the Act: Rizzo, paras 22 and 41. For this reason it
cannot be said that the Citizenship Judge erred in applying the Re Pourghasemi test. Furthermore, the
Citizenship Judge correctly applied the Re Pourghasemi test in determining that a shortfall of 771 days prevented a finding
that 1,095 days of physical presence in Canada had been accumulated.
29 As
a result, the appeal must fail. There is no order as to costs.
JUDGMENT
THIS COURT'S JUDGMENT is that the appeal is dismissed, without costs.
ROY J.
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