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Georges Blaha (Appellant) v.
Minister of Citizenship & Immigration (amicus curiae)
Citizenship Appeal Court, Pratte J.—Quebec, November 22; Ottawa, December 9, 1971.
Citizenship—"Residence", meaning—Applicant a student at U.S. university—Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 10(1)(b) and (c).
Appellant, a Czech refugee, entered Canada illegally in July 1963 and became a "landed" immigrant on October 29, 1965. He lived in Canada while attending Laval University until October 13, 1966, when he became a student at Ohio State University, returning to Canada only during the summer months until after his graduation in March 1971, when he returned to Canada permanently. On August 20, 1970, he applied for Canadian citizenship.
Held, affirming the Citizenship Court, his application must be refused. He had not met the residence requirements of s. 10(1)(b) and (c) of the Canadian Citizenship Act. The word "residence" as used therein requires physical pres ence (at least usually) on Canadian territory.
APPEAL from Citizenship Court.
Robert Lesage for appellant. Claude Ruelland, amicus curiae.
PRATTE J.—Appellant applied for Canadian citizenship. In order that his application be granted he had, under s. 10(1) of the Canadian Citizenship Act (R.S.C. 1952, c. 33, as amend ed, now R.S.C. 1970, c. C-19), to establish to the Court's satisfaction that he had resided in Canada for the time required by law. On May 25, 1971, the Court gave a decision on this point that was unfavourable to appellant. This is the decision which appellant is now challenging.
Appellant is a Czech refugee who entered Canada illegally on July 7, 1963. His position was regularized on October 29, 1965, the date of his "landing" as an immigrant. A few days later, on November 5, 1965, he filed with the Registry of the Court in Quebec a statement of his intention to become a Canadian citizen, and
finally, on August 20, 1970, he applied for Canadian citizenship.
Appellant remained in Canada from July 7, 1963 to October 13, 1966. In September 1963, he was registered as a full-time student in the Faculty of Forestry and Geodesy at Laval Uni versity, and received his B.A. in Geodesic Science in June 1965. He registered in the graduate school of Laval University immediate ly afterwards, and was awarded the degree of Master of Science (Photographic Surveying) on June 8, 1968. In 1966 appellant, who had earned a National Research Council scholar ship, decided on the advice of his professors to go immediately to the United States to continue his higher education, on the understanding that he would complete his work for the Master's degree in his summer holidays. He accordingly left Quebec on October 13, 1966, to study at Ohio State University which, in March 1971, conferred on him the doctorate he desired. Appellant returned to Canada permanently on March 23, 1971. While he was studying in the United States he returned annually to Canada. He worked at Laval University in Quebec in 1967, from the beginning of June to the end of September; and in each of the following years he returned to spend at least two months in Canada, living with his brother in Montreal most of the time.
It is established that appellant never intended to leave Canada for good; though he went to the United States, this was only for a time, in order to do further study in an area which was then practically unexplored here. He at all times thought he was maintaining his domicile in the Province of Quebec. Throughout this period he had a bank account in Quebec, held a driver's permit issued by the Department of Transport of the Province of Quebec, and every time he had to give his permanent address while he was in the United States he stated either Laval University or that of his brother in Montreal, with whom, moreover, he had left some person al effects. We may add that his sincerity cannot be questioned when he says that he would not have left Canada for the United States had he known that his time abroad would result in postponing the date when he would be able to acquire Canadian citizenship.
Paragraph (1)(b) and subparagraph (1)(c)(i) of section 10 of the Canadian Citizenship Act read as follows:
10. (1) The Minister may, in his discretion, grant a cer tificate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose and satisfies the Court that
(b) he has resided in Canada for at least twelve of the eighteen months immediately preceding the date of his application;
(c) the applicant has
(i) been lawfully admitted to Canada for permanent residence and has, since such admission, resided in Canada for at least five of the eight years immediately preceding the date of application, but for the purpose of this subparagraph, each full year of residence in Canada by the applicant prior to his lawful admission to Canada for permanent residence is deemed to be one half-year of residence in Canada within the eight-year period referred to in this subparagraph.
The only problem raised by this appeal is whether, in respect of the facts I have stated, the Court was right in deciding that appellant's application could not be granted because he had not resided in Canada for twelve of the eighteen months, and at least five of the eight years, immediately preceding the date of his applica tion, as required by the aforementioned legisla tive provisions.
Appellant's counsel, whose views on this point were concurred in by the counsel appoint ed to act as amicus curiae in the matter, alleged first that the Court had erred in deciding that appellant had not maintained his residence in Canada during the time he spent studying in the United States. He then submitted that the Court had erred in assuming that, in order to acquire citizenship, appellant had to meet the require ments of the Act as it stood in 1970, and still stands at the present time; in his opinion it was sufficient for appellant to show that he had satisfied the requirements of s. 10 as it stood before July 7, 1967. Finally, counsel for the appellant contended that the Court had erred in failing to take into consideration the fact that, under s. 10(8)(b) of the current Act, appellant did not have to meet the requirements of sub- paragraph (1)(c)(i) of this same section.
I shall deal with each of these submissions in the order that I have just employed.
The Court held that appellant had not resided in Canada during the period, from 1966 to 1970, when he was in the United States. Clearly this decision can only be reversed if appellant, as contended by his counsel and the amicus curiae, maintained his residence in Canada during the time that he was in the United States.
The Canadian Citizenship Act does not define the terms "reside" or "residence". It may be noted, however, that it defines the expression "place of domicile" in the following manner:
2. "place of domicile" means the place in which a person has his home or in which he resides or to which he returns as his place of permanent abode and does not mean a place in which he stays for a mere special or temporary purpose;
As the Act does not define the words "reside" and "residence", we must arrive at their mean ing by reference to the ordinary connotation, with the single obvious qualification that they cannot be given a meaning which is identical to that given by Parliament to the expression "place of domicile".
These two words, "reside" and "residence", do not have a definite meaning in law; their meaning varies with the context in which they are used. Since I am to decide the meaning of these terms in the Canadian Citizenship Act, I am unable, therefore, to rely on decisions in which the courts have had to specify the mean ing of those same words in other statutes, such as a tax statute (Thomson v. M.N.R. [1946] S.C.R. 209), an electoral statute (Re An Elec tion in St. John's South, Newfoundland (1960) 22 D.L.R. (2d) 288)), or a procedural statute (Ethier v. Nault [1952] Que. Q.B. 216).
In my opinion a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory. I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not
only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time. Parliament wishes by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society.
Further, this interpretation is confirmed by the comparison which can be made between the English and French versions of subparagraph (1)(c)(i) of section 10. The expression "each full year of residence in Canada", which appears in the English text of this subparagraph, has been translated in the French text by the words "cha- que année entière passée au Canada".
If this limited meaning is to be given to the word "reside", as I think it has to be, the Court was clearly right in holding that appellant did not reside in Canada for five of the eight years or for twelve of the eighteen months immediate ly preceding the date of his application.
However, it must now be considered wheth er, as the Court assumed, appellant, in order to be entitled to citizenship, was obliged to meet the requirements of paragraph (1)(b) and sub- paragraph (1)(c)(i) of section 10 as these provi sions have stood since 1967. Counsel for the appellant has indeed contended that his client, who arrived in Canada in 1963, became a "land- ed" immigrant on October 29, 1965, and filed a statement on November 5, 1965, of his inten tion to become a Canadian citizen, was entitled to acquire Canadian citizenship as soon as he satisfied the requirements of the statute as it stood at that time. At that period, and up to July 7, 1967, the French text of paragraph (1)(b) and subparagraph (1)(c)(i) of section 10 read as follows:
10. (1) Le Ministre peut, à sa discrétion, accorder un certificat de citoyenneté à toute personne qui n'est pas un citoyen canadien, qui en fait la demande et démontre à la satisfaction du tribunal,
b) qu'elle a résidé au Canada durant une période d'au moins une année précédant la date de sa demande;
c) que le demandeur ou la demanderesse
(i) a acquis un domicile canadien;
According to his counsel's argument appel lant, before s. 10 of the Canadian Citizenship Act was amended on July 7, 1967, was entitled to become a Canadian citizen as soon as he met the requirements of the law applicable at the time. Appealing to the principle by which a statute is not to be interpreted so as to give it retroactive effect, counsel for the appellant asserted that the amendments made to the wording of s. 10 on July 7, 1967 could not affect the rights of his client, who would thus continue to be able to acquire Canadian citizen ship on the conditions specified in the statute before July 7, 1967. The prior statute, he con tended, did not require that the period of twelve months' residence immediately precede the application for citizenship; nor did it require residence of five years. It would follow from this that the decision of the Court should be reversed, because, at the time he applied for Canadian citizenship, appellant had met the requirements of the statute applicable to him, i.e. the Canadian Citizenship Act as it stood before 1967.
I do not feel it necessary, in deciding on this appeal, to dwell at length on the argument I have just set out. Indeed, even if, as his counsel has contended, appellant was entitled to invoke the Canadian Citizenship Act as it stood before 1967, it would not follow that the Court's deci sion must be reversed, because appellant did not meet the requirements of this Act at the time he applied for Canadian citizenship. It is quite true that from 1953 to 1967 the French version of paragraph (1)(b) of section 10 required only, as counsel for the appellant indicated, that a person applying for Canadian citizenship establish:
b) qu'elle a résidé au Canada pendant une période d'au moins une année précédant la date de sa demande.
The meaning of this provision was, however, defined by the English text, which read as follows:
(b) he has resided in Canada for a period of at least one year immediately preceding the date of his, application.
It must be concluded, therefore, that before 1967 a foreigner could only acquire Canadian citizenship on condition that he had resided in
Canada during the twelve months immediately preceding the date of his application. As appel lant has not fulfilled this condition, there is no need to decide whether he can invoke the Act prior to 1967.
For the same reason, it is not necessary to express an opinion on the merits of the last ground put forward in support of the appeal. Counsel for the appellant has taken the Court to task for having failed to take into consideration the fact that appellant could invoke paragraph (8)(b) of section 10. This paragraph provides merely that subparagraph (1)(c)(i)—which requires five years' residence—does not apply to certain classes of persons. It would serve no purpose to decide whether appellant belongs to these privileged classes since, in any event, his application for citizenship cannot be granted for the reason that he had not resided in Canada for twelve of the eighteen months preceding the date of his application.
For these reasons the appeal is dismissed.
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