48/73
In the matter of the Canadian Citizenship Act,
R.S.C. 1970, c. C-19; and in the matter of an
appeal from the decision of the Court of Canadi-
an Citizenship; and in the matter of Sydney Dur-
ward Tremayne (Appellant)
Citizenship Appeal Court, Mahoney J.—Ottawa,
March 25, 1974.
Citizenship—Appeal from rejection of application—
Whether applicant "of good character"—Whether applicant
has "adequate knowledge of responsibilities and privileges of
Canadian citizenship'—Conviction of criminal offence—
Imprisonment and parole—Whether proof of rehabilitation—
Canadian Citizenship Act, s. 10(1Xd), (f).
The question whether an applicant for citizenship is "of
good character" within the meaning of section 10(1Xd) of
the Canadian Citizenship Act must be considered as of the
time the Court is considering the matter, and an applicant
who has been convicted of a criminal offence is entitled to a
finding that he is of good character when he has satisfied, by
imprisonment or other manner, the sentence imposed,
demonstrated by his subsequent conduct and way of life
that he has rehabilitated himself and brought before the
Court persons unrelated to him who were able to testify as
to the type of life he has been living as a law abiding and
useful member of society.
In re Dervishian [1968] 2 Ex.C.R. 384, approved.
APPEAL from Citizenship Court.
COUNSEL:
P. D. Eberlie for appellant.
P. Beseau amicus curiae.
MAHONEY J.—This is an appeal from a deci
sion of the Court of Canadian Citizenship not to
recommend to the Secretary of State that the
appellant be granted a certificate of citizenship.
The decision was based on the finding that the
appellant did not meet the requirements of para
graphs (d) and (f) of section 10(1) of the
Canadian Citizenship Act.
10. (1) The Minister may, in his discretion, grant a certifi
cate of citizenship to any person who is not a Canadian
citizen and who makes application for that purpose and
satisfies the Court that
(d) he is of good character and not under order of
deportation;
(f) he has an adequate knowledge of the responsibilities
and privileges of Canadian citizenship and intends to
comply with the oath of allegiance ... .
The appellant is a British subject, married to a
Canadian citizen, a registered nurse. There are
no children of this marriage however the appel
lant contributes to the support of a ten year old
daughter in the custody of his divorced first
wife. Maintenance payments are in good stand
ing. The divorce and remarriage occurred fol
lowing the appellant's release on parole.
The appellant is a writer and has resided in
Canada for over 13 years with a one year
absence during 1964 and 1965 when he was
attempting to establish a Canadian news bureau
elsewhere. While in Canada, prior to 1969, he
was employed as an information officer for a
university, editor of a trade publication and in
various reportorial and editorial capacities with
daily newspapers in two Canadian cities.
Early in 1969, the appellant, then aged 35,
was convicted of having in his possession a
narcotic for the purpose of trafficking and was
sentenced to 14 years in prison. On appeal the
sentence was reduced to seven years. The nar
cotic was marijuana. At about the same time,
and as a result of the same circumstances, he
was ordered deported. Previous convictions for
theft, when he was 18 and 19 years old, resulted
in a £6 fine and two years probation
respectively.
The appellant appears to have been an exem
plary prisoner. He became president of the pris
on's branch of a national service club and revi
talized it to the extent that it grew from a
membership of 14 to over 40. He re-established
its house publication and, by invitation, present
ed a first rate, wide ranging brief to a provincial
government task force dealing with social de
velopment and welfare. He was active as a
participant and leader in educational and recrea
tional programs in the prison. He was regarded
as a suitable candidate for parole.
An appeal to the Immigration Appeal Board
resulted in a stay of execution of the deporta
tion order and a requirement that the appellant
report to an Immigration Officer at four month
intervals with the proviso that the Board would,
in two years, reconsider the appeal. The stay of
execution cleared the way for his parole and
within a month, he was granted day parole,
having served 25 months of his sentence in
addition to whatever time he spent in jail
between his arrest and conviction. Subsequent
ly, immediately he became eligible for it, he was
granted a regular parole.
The appellant left prison with $23 in his
pocket and no debts. After an unsuccessful
attempt at selling, he put his talent as a writer to
work both as a freelance journalist and as a
communications consultant. Among other
things, he produced the copy for a successful
provincial campaign to encourage the adoption
of hard-to-place children, articles for trade
magazines and started a weekly newspaper.
During this period, with the approval of his
parole officer, he established his credit with a
chartered bank and incurred, at its greatest, an
indebtedness of $7,000.
The newspaper was reasonably successful,
except financially, and, as it became more suc
cessful, it cut into the time available for income
producing activities. The appellant sold his in
terest to a co-owner and took a position with an
agency of one of the levels of government at an
annual salary in excess of $14,000. The job was
in the area of information services. He is pres
ently earning over $16,000 annually; the bank
loan is under $5,000 and he estimates his net
worth at more than $6,000. No special condi
tions are attached to his parole and the require
ment that he report to the police has been
deleted.
The appellant disclosed his status as a parolee
and the circumstances of his conviction to the
appropriate authorities of the government and
they were known to the official who inter
viewed him prior to his appointment and who, in
fact, became his immediate superior. He con
cluded that, if he was to advance in the public
service, he ought to be a Canadian citizen. He
requested the Immigration Appeal Board to
reconsider his deportation order some months in
advance of the expiration of the two years
stipulated. The Board agreed to his request and,
in the result, quashed the deportation order. The
appellant immediately applied for a grant of a
certificate of Canadian citizenship with the
resultant adverse decision of the Canadian Citi
zenship Court.
The appellant's representative examined him
on all the heads under section 10(1) that might
lead to an unfavourable decision. Certainly
there is nothing in the decision of the Court
favourable to the appellant that I would disagree
with.
The appellant was not under order of deporta
tion at the relevant time so it is apparent that
the decision that he did not then meet the
requirement of section 10(1)(d') was based
solely on a decision that he was not of good
character. It further appears that he had taken
the oath of allegiance and had every intention of
complying with it. In view of his background
and activities in journalism in several parts of
Canada, the length of time he had been in
Canada and his apparent intelligence, the deci
sion that he failed to meet the requirements of
section 10(1)0 must have been arrived at on
the basis that the adequacy of his "knowledge
of the responsibilities and privileges of Canadi-
an citizenship" was qualitatively deficient. Cer
tainly there is nothing inadequate about the
appellant's knowledge in a quantitative sense
and if a qualitative lack was perceived it pre
sumably flowed from the same circumstances
that led to the conclusion that he was not of
good character. It follows that the only real
question is that of the appellant's good
character.
Jackett P., Noël J., as they then were, and
Dumoulin J., sitting as a Citizenship Appeal
Court in an appeal' by an appellant who had
been convicted and fined $25 for shoplifting
something less than four years before being
found not of good character by the court of first
instance allowed the appeal. In so doing, they
pointed out that the determination of the ques
tion of good character is to be made as at the
time the Court is considering the question and
not with reference to an earlier time when, due
to the immediacy of a proven or admitted crimi
nal act, a negative decision would be almost
certain. They went on to say [at pages 385,
386]:
Our view is that, after a person who has been convicted of
a criminal offence has served any term of imprisonment that
has been imposed on him or has otherwise satisfied any
sentence that has been passed on him in respect of his
offence, and after he has demonstrated by his subsequent
course of conduct and way of life that he has rehabilitated
himself in the eyes of right thinking citizens, he is entitled to
a finding that he is of good character within the meaning of
section 10(1)(d).
In this appeal in addition to the evidence of the
appellant and his wife, I have the evidence of
his bank manager, the parole officer to whom he
reported when first granted regular parole and
the parole officer to whom he is now reporting,
the official who became his immediate superior
when he was first employed in government ser
vice and his present immediate superior. The
verdicts of the warden in granting day parole,
the National Parole Board in granting regular
parole and the Immigration Appeal Board speak
for themselves.
It has been said, perhaps facetiously, that no
one who has not been committed possesses
documentary proof of his sanity. Similarly, I
doubt that anyone who had not been convicted
could produce positive evidence of present good
character as authoritative as that produced by
the appellant.
1 In re Dervishian [1968] 2 Ex.C.R. 384.
If the appellant had not accepted parole and
remained in prison, with full remission for good
behaviour which he apparently would have
earned, his sentence would have been fully
served by the time this appeal was heard. Since
remission cannot be earned during parole his
sentence will not, in fact, expire within the year.
This situation necessarily raises the question of
whether or not the appellant has served the
"term of imprisonment that has been imposed
on him or has otherwise satisfied any sentence
that has been passed on him".
The appellant's representative is no doubt
technically correct in arguing that stare decisis
does not apply to bind this Court even though
the previous decision was unanimously ren
dered by three distinguished judges. At the
same time, the authority of the previous deci
sion must be acknowledged.
The Court in the Dervishian case was dealing
with a sentence to pay a fine and I think it
probable that when the Court spoke of "other-
wise" satisfying the sentence it was thinking of
other sentences than imprisonment. Certainly
parole was not in issue and was not mentioned
in the judgment. I am inclined to the view that
parole was not considered by the Court and not
contemplated in its decision.
It would indeed be a peculiar result if the
appellant in this case could have removed a bar
to a finding that he is of good character by
refusing parole and remaining in jail while, by
the same decision, he would, in all likelihood,
have deprived himself, from a practical point of
view, of the opportunity to demonstrate that
good character in ordinary, everyday relation
ships with others. The establishment, however
solidly, of oneself as a good prisoner would
scarcely satisfy the requirements of section
10(1)(d).
In my view, the appellant had satisfied the
demands of the law in so far as his imprison
ment was concerned when he was paroled. At
that point in time he was given the opportunity
to demonstrate his ability to live as a law abid
ing and useful member of society. Had he failed
he would have been returned to prison and the
result of this appeal would be otherwise. How
ever he did not fail and, after almost three years
of parole, he is entitled to be found of good
character within the meaning of section 10(1Xd)
and to have an adequate knowledge of the
responsibilities and privileges of Canadian citi
zenship within the meaning of section 10(1)(O.
The appeal is allowed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.