T-1565-78
In re Citizenship Act and in re David A. Beniston
(Appellant)
Trial Division, Dubinsky D.J.—Toronto, Septem-
ber 20; Halifax, November 1, 1978.
Citizenship — Application for citizenship rejected by Citi
zenship Judge under former law on December 30, 1977 —
Appellant convicted of possession under Narcotic Control Act
before application made on September 12, 1975 and charged
on August 24, 1975 with trafficking and convicted on April 22,
1977 — Whether or not convictions a bar to appellant's
application for citizenship — Proceedings continued under new
Citizenship Act — Canadian Citizenship Act, R.S.C. 1970, c.
C-19, ss. 10(1)(d), 13(5) — Citizenship Act, S.C. 1974-75-76,
c. 108, ss. 20(2), 35(1) — Narcotic Control Act, R.S.C. 1970, c.
N-1, ss. 3, 4(2).
This is an appeal from a decision, dated December 30, 1977,
of a Citizenship Judge who dismissed appellant's application
because he had shown a lack of responsibility and because he
was not of good character. Application had been made on
September 12, 1975. Appellant had been convicted of posses
sion of narcotics under section 3 of the Narcotic Control Act on
November 25, 1974 and was charged with trafficking under
section 4(2) of that Act on August 24, 1975, and subsequently
convicted on April 22, 1977. The important issue in the case is
whether or not appellant was convicted of an indictable offence
during the three-year period immediately preceding the date of
his application, and secondly, whether or not he was convicted
of an indictable offence since that date and the "date that he
would otherwise be granted citizenship". The appeal is con
sidered under the Citizenship Act, S.C. 1974-75-76, c. 108.
Held, the appeal is allowed. Paragraph 20(2)(b) of the
Miscellaneous Statute Law Amendment Act, 1978, S.C. 1977-
78, c. 22, means that but for the conviction on an indictable
offence after his application for citizenship was made, an
applicant would otherwise be granted citizenship. The crucial
date in so far as appellant's appeal is concerned is when the
Citizenship Judge rejected his application because of his con
victions for two indictable offences under the Narcotic Control
Act. There is legal authority that the first offence was in fact
not an indictable one. As for the second, the Citizenship Judge
ought not to have considered it because the Miscellaneous
Statute Law Amendment Act, 1978 had not yet become law.
But for those two convictions there was nothing before the
Citizenship Judge whereon she could find the applicant was not
"of good character" under section 10(1)(d) of the former Act
or that he did not have "an adequate knowledge of the respon
sibilities and privileges of Canadian citizenship" under section
10(1)(/) of that Act.
R. v. Eaton (1973) 11 C.C.C. (2d) 80, applied.
APPEAL.
COUNSEL:
David A. Beniston appearing on his own
behalf.
Frederick W. Chenoweth, amicus curiae.
SOLICITORS:
Frederick W. Chenoweth, Toronto, amicus
curiae.
The following are the reasons for judgment
rendered in English by
DUBINSKY D.J.: This appeal from a decision of
the Citizenship Judge dated December 30, 1977
came before me at Toronto, Ontario, on Septem-
ber 20, 1978.
The reasons for the dismissal of the appellant's
application are set out fully in the remarks which
the learned Citizenship Judge attached to the
record. Here is what Citizenship Judge Geraldine
Copps said in part:
Mr. David Allan Beniston appeared before me on August 25,
1977. He had previously appeared before a Citizenship Judge
on January 5, 1976 and the decision was delayed because the
August 24, 1975 narcotics charge for possession of narcotics
had not yet been heard.
After several remands, some on the part of Mr. Beniston's
own attorney, he was found guilty and sentenced on April 22,
1977.
When I asked Mr. Beniston why there had been so many
remands, he told me that it was because his "Legal Aid"
counsel was not all that competent. Previously, in answer to my
question re his work record, Mr. Beniston had replied that he
had a steady eight-year work record in a supervisory capacity. I
then queried him as to his need for Legal Aid and his reply was
that he did not have any ready cash. When asked if he had
made restitution when he got some cash, he did not answer.
Mr. Beniston had received a sentence of $100.00 or 30 days
for a previous drug-trafficking charge.
It must also be noted that Mr. Benniston filed his application
on September 12, 1976 and, according to his sworn testimony,
to which he affixed his signature, indicated only the March
1974 fine for drug possession.
Mr. Benniston's first drug-trafficking offence occurred at the
age of 24 and the second at 25.
It is my opinion that Mr. Benniston is not the type I would
recommend for citizenship and he has certainly shown a lack of
responsibility. He is, therefore, rejected under Sections
10(1)(d) and 10(1)(f) of the former Citizenship Act.
Pursuant to section 13(5) of the Citizenship Act,
Mr. Beniston lodged an appeal to this Court. The
notice of appeal was received and filed on April
12, 1978.
It will be remembered that the application of
the appellant came before the Citizenship Judge
under the provisions of the former Act, namely the
Canadian Citizenship Act, R.S.C. 1970, c. C-19.
Section 10(1) (d), as it stood at that time, read
as follows:
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;
The new Act, the Citizenship Act, S.C. 1974-
75-76, c. 108, came into force when it was pro
claimed on February 15, 1977. The notice of
appeal was filed herein about one year and two
months after the Act was proclaimed.
Section 35(1) of the Act, under Part IX which is
entitled "Transitional and Repeal", states as
follows:
35. (1) Proceedings commenced under the former Act that
are not completed on the coming into force of this Act may be
continued as proceedings under the former Act or under this
Act and any regulations made thereunder, as the Minister may,
in his discretion, determine, but any proceedings continued
under the former Act and regulations made thereunder may not
be so continued for more than one year from the coming into
force of this Act.
Upon discussing the matter with Mr. Frederick
W. Chenoweth, the amicus curiae, who has been
of great assistance to me in this and in other
appeals before me in which he appeared, and on
my close reading of the file herein, I am satisfied
that the appeal to this Court has been made under
the new or present Act.
It is significant that section 5 of the Act which
corresponds to section 10 of the old Act—both
sections setting forth what must be complied with
by an applicant for a grant of citizenship—does
not have any reference to the "good character"
requirement of section 10(1) (d) of the old Act.
There is, of course, section 20(2) which has been
amended by the Miscellaneous Statute Law
Amendment Act, 1978, S.C. 1977-78, c. 22 and
which now reads as follows:
20. ...
(2) Notwithstanding anything in this Act, but subject to the
Criminal Records Act, a person shall not be granted citizenship
under section 5 or subsection 10(1) or administered the oath of
citizenship if
(a) during the three-year period immediately preceding the
date of his application, or
(b) during the period between the date of his application and
the date that he would otherwise be granted citizenship or
administered the oath of citizenship
he has been convicted of an offence under subsection 28(1) or
(2) or of an indictable offence under any Act of Parliament.
The amicus curiae was satisfied, as I was, that
section 28(1) and (2) had no application to Mr.
Beniston. The important issue in this case is firstly,
whether or not he was convicted of an indictable
offence during the three-year period immediately
preceding the date of his application—September
12, 1975—and secondly, whether or not he was
convicted of an indictable offence since September
12, 1975 and the "date that he would otherwise be
granted citizenship".
I first look at what his record discloses prior to
the aforesaid date of his application. According to
the file, as I read it, he was convicted in Toronto,
Ontario, on November 25, 1974 of possession of
narcotics and fined $100 or in default to be impris
oned for 30 days.
Section 3 of the Narcotic Control Act, R.S.C.
1970, c. N-1 states in part as follows:
3. (1) Except as authorized by this Act or the regulations,
no person shall have a narcotic in his possession.
(2) Every person who violates subsection (1) is guilty of an
indictable offence and is liable
(a) upon summary conviction ...
(b) upon conviction on indictment .. .
It would appear at first blush that prior to
September 12, 1975 when he applied for citizen
ship, the appellant was convicted of an indictable
offence. That in itself would have closed the door
on his appeal.
However, in the case of R. v. Eaton (1973) 11
C.C.C. (2d) 80, it was held that
The inclusion of the word "indictable" in the English version
of s. 3(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1,
which provides "Every person who violates subsection (1) is
guilty of an indictable offence ...", but goes on to make the
offence punishable either on summary conviction or by indict
ment, is a typographical error and the word should be ignored
by the Courts.
Mr. Justice Gould of the British Columbia
Supreme Court at page 83 stated as follows:
It is clear that the inclusion of the word "indictable" in s-s.
(2), as printed in the Revised Statutes of 1970, is a typograph
ical error and the word should not be there.
There is ample authority in the Court to correct a statute,
where the mistake is obvious, and the ends of justice would be
frustrated by allowing the mistake to stand, and be interpreted
as the true intent of the legislation: see the decision of Riley, J.,
in Sale et al. v. Wills (1971), 22 D.L.R. (3d) 566, [1972] 1
W.W.R. 138, particularly pp. 572-6.
I therefore hold that the English version of s. 3(2) of the
Narcotic Control Act may and should be interpreted as if the
word "indictable" were not there.
In view of the above noted case, I hold that Mr.
Beniston, the appellant herein, was not convicted
of an indictable offence prior to his application for
citizenship on September 12, 1975. No other
indictable offence is shown on his record before
that date.
However, the appellant's file does disclose that
on August 24, 1975, he was charged under section
4(2) of the aforementioned Narcotic Control Act.
Section 4 of that Act reads as follows:
4. (1) No person shall traffic in a narcotic or any substance
represented or held out by him to be a narcotic.
(2) No person shall have in his possession any narcotic for
the purpose of trafficking.
(3) Every person who violates subsection (1) or (2) is guilty
of an indictable offence a.nd is liable to imprisonment for life.
For some unaccountable reason, the disposition
of this case did not take place until April 22,
1977—some 20 months after the offence and
nearly 25 months after his application for citizen
ship. For this offence, Mr. Beniston was sentenced
to 90 days in jail and placed on probation for one
year.
Again it would appear that the door is closed on
the appellant's appeal. But on closer examination I
have come to the conclusion that it does not.
Following is my reasoning.
To repeat section 20(2)(b) as amended by the
Miscellaneous Statute Law Amendment Act,
1978, (supra), it now reads:
20: (2) ...
(b) during the period between the date of his application and
the date that he would otherwise be granted citizenship ....
In my view, the important word in this clause is
"otherwise". The section means to say that but for
the conviction on an indictable offence after his
application for citizenship was made, an applicant
would otherwise be granted citizenship.
Subject to contrary opinion, I hold that the
crucial date in so far as the appeal of the appellant
herein is concerned is December 30, 1977. That
was the date when the learned Citizenship Judge
rejected his application. Why did she dismiss his
application? Her reasons which I have quoted in
part earlier were based on his convictions for two
indictable offences under the Narcotic Control
Act. But as I have pointed out above, there is legal
authority that the first offence was in fact not an
indictable one. As for the second, Judge Copps
ought not to have considered it because on Decem-
ber 30, 1977, the Miscellaneous Statute Law
Amendment Act, 1978 had not yet become law. It
came into force by Royal Assent on April 12,
1978.
On December 30, 1977, as section 20(2) of the
Act then read, she could only consider those
indictable offences committed within the three-
year period immediately preceding the date of his
application, namely, September 12, 1975. As
stated before, the only indictable offence of which
he was found guilty was on April 22, 1977—some
18 months after the date of his application. But for
those two convictions there was nothing before the
learned Citizenship Judge whereon she could find
that the applicant was not "of good character"
under section 10(1)(d) of the former Act or that
he did not have "an adequate knowledge of the
responsibilities and privileges of Canadian citizen
ship" under section 10(1) (f) of that Act.
I may say that notwithstanding the fact that the
new Act has no "good character" requirement,
nevertheless the appellant was questioned before
me as to his behaviour at the present time and
during the past couple of years. I am fully satisfied
that his conduct has been good and that he is
deserving of becoming a Canadian citizen.
In view of the above, it is my conclusion that the
appellant is entitled to succeed on his appeal.
Accordingly, I announced at the end of the hearing
before me that his appeal was being allowed. I now
confirm the oral decision previously made.
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.