Canadian Nationality Law - Judicial Review of Provisions of Current and Previous Citizenship Acts

Judicial Review of Provisions of Current and Previous Citizenship Acts

There has been a number of court decisions dealing with the subject of Canadian citizenship. In particular, the interpretation of the 3 year (1,095 day) residence requirement enacted by the 1977 Citizenship Act, which does not define the term "residence" and, further, prohibits an appeal of a Federal Court decision in a citizenship matter to the Federal Court of Appeal or the Supreme Court, has "led to a great deal of mischief and agony" and generated considerable judicial controversy.

Over the years 2 principal schools of thought with respect to residence have emerged from the Federal Court.

Early on, in 1978, Associate Chief Justice Arthur L. Thurlow in Papadogiorgakis (Re), 2 F.C. 208, opined that residency entails more than a mere counting of days. He held that residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant’s linkages suggest that Canada is his or her home, regardless of any absences from the country.

In Koo (Re),1992 CanLII 2417 (FC), 1 FC 286, Justice Barbara Reed further elaborated that in residency cases the question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. Resolving such a question involves consideration of several factors:

1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
2. Where are the applicant's immediate family and dependents (and extended family) resident?
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
4. What is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive?
5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?

The general principle is that the quality of residence in Canada must be more substantial than elsewhere.

In contrast, a line of jurisprudence flowing from the decision in Re Pourghasemi (1993), 62 F.T.R. 122, 19 Imm. L.R. (2d) 259, emphasized how important it is for a potential new citizen to be immersed in Canadian society and that a person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time.

In the words of Justice Francis Muldoon:

It is clear that the purpose of 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." 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... 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.

The co-existence of such disparate, yet equally valid approaches has led some judges to comment that the citizenship "law is in a sorry state," that "there cannot be two correct interpretations of a statute," that "it does not engender confidence in the system for conferring citizenship if an applicant is, in the course of a single application, subjected to different legal tests because of the differing legal views of the Citizenship Court," that there's a "scandalous incertitude in the law," and that "there is no doubt that a review of the citizenship decisions of this Court, on that issue, demonstrates that the process of gaining citizenship in such circumstances is akin to a lottery."

In 2010 it seemed that a relative judicial consensus with respect to decision-making in residence cases might emerge. In several Federal Court decisions it was held that the Citizenship Judge must apply a hybrid two-test approach by firstly ascertaining whether, on the balance of probabilities, the applicant has accumulated 1,095 days of physical presence. If so, the residency requirement is considered to have been met. If not, then the judge must additionally assess the application under the "centralized mode of existence" approach, guided by the non-exhaustive factors set out in Koo (Re).

However, most recently, this compromise formula was rejected by the Federal Court judges, who continued to plead for legislative intervention as the means to settle the residency requirement debacle.

A few of the other major decisions are:

Glynos v. Canada, 3 F.C. 691 (F.C.A.). The Federal Court of Appeal ruled that the child of a Canadian mother had the right to be granted Canadian citizenship, despite the fact that the responsible parent of the child (i.e. the father) had naturalized as a U.S. citizen before 15 February 1977 and had thus lost his Canadian citizenship.

Benner v. Canada (Secretary of State), 1997 CanLII 376 (SCC), 1997 1 SCR 358. The Supreme Court of Canada ruled that children born abroad before 15 February 1977 of Canadian mothers were to be treated the same as those of Canadian fathers (i.e. granted citizenship upon application without the requirements of a security check or taking a citizenship oath).

Canada (Attorney General) v. McKenna, 1998 CanLII 9098 (FCA), 1999 1 FC 401. The Federal Court of Appeal ruled that the Minister had to establish a bona fide justification pursuant to section 15(g) of the Canadian Human Rights Act for the discriminatory practice in the Act on adoptive parentage, where children born abroad to Canadian citizens obtain "automatic" citizenship while children adopted outside Canada must gain admission to Canada as permanent residents, as mandated by paragraph 5(2)(a ) of the Citizenship Act, which incorporates by reference the requirements imposed by the Immigration Act pertaining to permanent resident status. However, it also declared that the Canadian Human Rights Tribunal had overreached itself in declaring that the granting of citizenship was a service customarily available to the general public, and had breached the rules of natural justice by failing to notify the Minister that the provisions of the Citizenship Act were being questioned.

Taylor v. Minister of Citizenship and Immigration, 2007 FCA 349. The Federal Court of Canada had ruled in September 2006 that an individual born abroad and out of wedlock to a Canadian serviceman father and a non-Canadian mother acquired citizenship upon arrival in Canada after World War II and did not subsequently lose Canadian citizenship while living abroad. This was reversed by the Federal Court of Appeal in November 2007, which held that Taylor had lost his Canadian citizenship under section 20 of the 1947 Act (absence from Canada for ten consecutive years), and therefore the court could not grant his request. However, he was now able to request a grant of citizenship under section 5(4) (special cases) of the current Act,and citizenship was subsequently granted in December 2007.