T-3553-79
In re the Citizenship Act and in re Mrs. Massika
Boutros (Appellant)
Trial Division, Addy J.—Ottawa, December 14,
1979 and February 13, 1980.
Citizenship — Jurisdiction — Appellant appeals (1) Citi
zenship Judge's finding that she had an inadequate knowledge
of an official language, and (2) the Citizenship Judge's deci
sion not to recommend to the Minister that he exercise his
discretion to grant citizenship on compassionate grounds —
Knowledge of an official language and knowledge of Canada,
and of responsibilities and privileges of citizenship found to be
inadequate on appeal — Whether or not the Court had juris
diction on appeal by way of trial de novo to make recommen
dation which Trial Judge found to be unwarranted in the
circumstances — Citizenship Act, S.C. 1974-75-76, c. 108,
ss. 13(2),(5), 14(1).
Appellant appeals both the Citizenship Judge's finding that
she had an inadequate knowledge of an official language and
his decision not to recommend that the Minister exercise his
discretion on compassionate grounds. On appeal, she admitted
an inadequate knowledge of an official language, and the
finding was made that appellant had an inadequate knowledge
of Canada and of the responsibilities and privileges of citizen
ship, leaving for consideration the issue of whether or not the
Judge on appeal should recommend that citizenship be granted
on compassionate or humanitarian grounds. Basic to a con
sideration of this issue was whether or not the Court had
jurisdiction to make either of the recommendations that the
Citizenship Judge had refused to make, should the facts war
rant it.
Held, the appeal is dismissed. This Court has no jurisdiction
under subsection 13(5) of the Citizenship Act to entertain an
appeal against a decision of a citizenship court judge to refrain
from making any recommendation under subsection 14(1). If a
decision made under subsection 14(1) is not appealable under
section 13 to the Trial Division, it is possible that it might be
considered a final decision required to be made in a judicial or
quasi-judicial manner, and therefore reviewable by the Federal
Court of Appeal pursuant to section 28 of the Federal Court
Act. Subsection 13(6) is no bar to an appeal to the Court of
Appeal because that subsection only bars appeals from a
decision of the Trial Division rendered pursuant to an appeal to
it under subsection 13(5). A decision by a court that it does not
have jurisdiction under a statute, does not constitute a decision
pursuant to such statute but where such a refusal purports to
dispose finally of the matter, it nevertheless does constitute a
final judgment of that court which would be appealable under
paragraph 27(1)(a) of the Federal Court Act.
In re Akins and in re the Citizenship Act [1978] 1 F.C.
757, applied.
APPEAL.
COUNSEL:
P. Dupont -Rousse for appellant.
J. Sauvé, amicus curiae.
SOLICITORS:
P. Dupont -Rousse, Hull, for appellant.
Sauvé, Osborne & Bastien, Gatineau, for
amicus curiae.
The following are the reasons for judgment
rendered in English by
ADDY J.: The present appeal was instituted as a
result of a finding of a Citizenship Judge to the
effect that the appellant not be granted Canadian
citizenship on the grounds that she did not possess
a sufficient knowledge of either of the official
languages as required by paragraph 5(1)(c) of the
Citizenship Act, S.C. 1974-75-76, c. 108'. The
Court below also decided, pursuant to subsection
14(1)' of the Act, not to recommend to the Minis
ter that he exercise his discretion on compassionate
grounds as authorized by paragraph 5(3)(a)' or
that executive action be taken by Cabinet pursuant
to subsection 5(4)'. It was admitted on appeal, by
counsel for the appellant, that the latter did not in
fact possess the required knowledge of either of the
official languages, in other words, that she did not
meet the requirements of paragraph 5(1)(c)'.
As the applicant was Lebanese and could not
converse with the Citizenship Judge, no finding
was made by the latter as to her knowledge of
Canada or as to her knowledge of the responsibili
ties and privileges of citizenship as required by
paragraph 5(1)(d)'.
During the hearing of the appeal before me, the
appellant's daughter, who speaks French quite flu
ently, was sworn in as an interpreter. Questions
were put to the appellant through her daughter to
determine whether or not she met this latter
requirement. I have no hesitation in finding that
she does not. She did not know of the existence of
I Refer attached schedule for text.
three levels of government nor has she heard of the
Rocky Mountains. Although she had lived in Hull,
Quebec, for four years, she did not know who was
the Premier of her Province or who was the mayor
of her city. She did not even know of the existence
of the office of mayor.
As the Citizenship Judge had refused to recom
mend to the Minister that citizenship be granted
either on compassionate or humanitarian grounds,
it was urged upon me that I should do so. This, in
fact, was the sole ground of appeal. The relevant
sections of the Act are annexed for ease of refer
ence as a schedule to these reasons.
It was pointed out to me that some of my
brother Judges had, in the past, entertained
appeals on decisions made by Citizenship Court
Judges under subsection 14(1) 1 and had in fact
made recommendations to the Minister where a
Citizenship Judge had decided against making
one. Others, after hearing evidence, had referred
the matter back for reconsideration. I accordingly
decided to hear evidence on the issue but reserved
on the question of whether I had jurisdiction to
hear the appeal at all and, since the appeal is by
way of trial de novo, whether I could, should the
facts warrant it, make either one of the two recom
mendations which the Citizenship Judge decided
were not warranted by the circumstances.
I have considered the matter carefully and, not
withstanding jurisprudence to the contrary, I am
again driven to the conclusion that this Court has
no jurisdiction under subsection 13(5)' of the Act
to entertain an appeal against a decision of a
citizenship court judge to refrain from making any
recommendation under subsection 14(1)'. I there
fore reaffirm the view on the subject which I
adopted in the appeal of In re Akins and in re the
Citizenship Act e .
To put the matter in a somewhat different way
than in the Akins case: From a strictly legal point
of view, the duty imposed on the Citizenship Judge
' Refer attached schedule for text.
2 [1978] 1 F.C. 757.
by subsection 14(1) of the Citizenship Act to
"consider" a recommendation is something quite
different and apart from his duty under subsection
13(2) to "approve or not approve" and the subsec
tion 14(1) duty must be performed "before" decid
ing not to approve. Finally, this Court's jurisdic
tion under subsection 13(5) extends only to "the
decision ... under subsection (2)."
I would like to add that it seems highly improb
able to me that Parliament would direct that a
judge of a superior court of record with civil and
criminal jurisdiction, such as the Trial Division of
the Federal Court of Canada, when acting as a
member of that Court, be put in the subordinate
position qua the Minister designated under subsec
tion 2(1) of the Citizenship Act, of being charged
with the duty of issuing a recommendation to that
Minister which the latter may or may not choose
to implement, when some actions of that Minister
may be the subject of a writ or order of mandamus
or prohibition issued by the same judge.
Courts of law generally, as opposed to certain
other tribunals which might exercise administra
tive as well as judicial or quasi-judicial functions,
and courts of superior jurisdiction in particular,
are created in order to exercise purely judicial as
distinct from the legislative, executive or adminis
trative functions of government and the recognized
role of such courts is, by reason of the principle of
division of powers, restricted to issuing executory
and declaratory judgments and orders and does
not include making recommendations for the
administrative or the executive arms of govern
ment. In any event, the enactment under consider
ation does not, in my view, purport to impose such
a duty on the Court. In order to create such
radical departure from the normal role of courts
the direction would, at the very least, have to be
absolutely clear and unequivocal.
Other considerations exist which are worthy of
note. It cannot be argued that a person in the
situation of the present appellant would be
deprived of further remedy should I not have
jurisdiction, for no person is precluded from
requesting that ministerial discretion be exercised
pursuant to subsection 5(3) 1 or that Cabinet
action be taken pursuant to subsection 5(4)', not
withstanding that the Citizenship Judge has seen
fit to withhold any recommendation to that effect.
More importantly, any person may at any time
reapply for citizenship before the same or another
citizenship judge on the basis of the same or such
additional grounds, evidence or submissions as the
applicant may deem advisable.
It is unfortunate that, in citizenship appeals
such as the case at bar, there is merely an appel
lant and an amicus curiae before the Court and no
opposing counsel or respondent. As a consequence,
there always exists the danger of views contrary to
those propounded by the appellant not being thor
oughly canvassed and argued and also the more
serious danger, as a result of this, of the Court
being tempted to abandon its impartial position to
some extent in order to consider and explore those
counter-arguments which otherwise would be
advanced by counsel for the respondent.
The Akins decision, supra, has been followed by
at least one Judge of this Court although, as stated
previously, a completely contrary view has been
adopted by others.
Finally, if a decision made under subsection
14(1)' is not appealable under section 13 to the
Trial Division it is possible that it might still be
considered a final decision required to be made in
a judicial or quasi-judicial manner, and in such
event would by reason of section 15, be reviewable
by the Federal Court of Appeal under section 28
of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10. In any event, if, as I am holding, the
decision of the Citizenship Judge not to recom
mend any action by the Minister or by the Cabinet
is not appealable, then, because of section 15,
subsection 13(6) is of itself no bar to further
recourse to the Court of Appeal for a review.
' Refer attached schedule for text.
Having regard to the diametrically opposed
findings on this fundamental and important ques
tion of jurisdiction and of what I consider to be the
serious implications involved in this issue which
include the possible ramifications of any finding to
the effect that an administrative role is to be
adopted by any court of law, it would be far more
desirable that the issue be settled by way of regu
lar appeal to the Court of Appeal since the
grounds for a review under section 28 of the
Federal Court Act are somewhat restrictive, even
if the decision pursuant to subsection 14(1) were
reviewable at all.
The only bar to the Court of Appeal's jurisdic
tion in a citizenship matter, to hear an appeal from
the Trial Division of this Court pursuant to section
27 of the Federal Court Act', lies in the provisions
of subsection (6) of section 13 of the Citizenship
Act'. This subsection does not constitute an abso
lute prohibition against all appeals but merely bars
any appeal from a decision of the Trial Division
rendered pursuant to an appeal to it under subsec
tion (5) of that section. However, a decision of the
Trial Division not to consider an appeal as being
made under subsection (5) is not a decision of that
Court pursuant to an appeal made under subsec
tion (5) and is therefore not subject to the provi
sions of subsection (6). A decision by a court that
it does not have jurisdiction under a statute, does
not constitute a decision pursuant to such statute
but where such a refusal purports to dispose finally
of the matter, it nevertheless does constitute a final
judgment of that court which, in my view, would
be appealable under paragraph (a) of subsection
27(1) of the Federal Court Act'.
As I appreciate what is before me, it is:
(a) a nominal appeal under subsection 13(5)
from the Citizenship Judge's decision not to
approve the appellant's application, which
' Refer attached schedule for text.
appeal was to all intents and purposes aban
doned during argument; and
(b) an appeal from the Citizenship Judge's con
clusion under subsection 14(1) not to recom
mend an exercise of discretion.
Having regard to the views that I have
expressed, I propose to deliver, in one judgment
document, two judgments, viz.:
(1) a judgment dismissing the appeal under
subsection 13(5) on the merits; and
(2) a judgment dismissing, for want of jurisdic
tion, the appeal from the subsection 14(1)
conclusion.
As I conceive it, the judgment dismissing the
subsection 13(5) appeal will be barred by subsec
tion 13(6) but the latter provision has no applica
tion to the judgment dismissing, for want of juris
diction, the appeal from the subsection 14(1)
conclusion; and I know of no other provision that
would deprive the Court of Appeal, in the case of
such a judgment, of its general jurisdiction under
section 27 of the Federal Court Act to entertain an
appeal from a judgment of this Division.
An appeal in the present case is all the more
desirable not only because of the conflicting deci
sions but because of the procedures adopted by
Citizenship Courts in advising applicants of their
decisions. Where, as in the case at bar, the Citi
zenship Court Judge finds that the applicant does
not meet the requirements of the Act and also
refuses to make any of the recommendations pro
vided for in subsection 14(1), the letter advising
the unsuccessful candidate of this finding invari
ably advises the latter that the finding may be
appealed. As a result, applicants such as Mrs.
Boutros who are perfectly aware that they do not
meet all of the requirements of subsection 5(1) are
nevertheless, quite naturally led to believe that the
Citizenship Judge's failure to recommend under
subsection 14(1) is also appealable. This leads to a
series of what, in my view at least, are futile
appeals, resulting in a waste of time, effort and
money in addition to frustrating applicants who
cannot help but wonder what is happening. The
solution seems to lie in a clarification by way of
appeal to the Court of Appeal rather than by
further legislation on the subject, unless it is made
clear that the decision of the Citizenship Judge is
not appealable, as further legislation authorizing a
right of appeal from a decision under subsection
14(1) might very well be subject to the objections
to which I have alluded regarding separation of
powers and the traditional and fundamental role of
courts of superior jurisdiction.
I therefore feel that the administration of justice
and public interest in general would best be served
and future expense and confusion avoided if the
matter were finally settled by appealing this
decision.
In view of the financial situation of the appel
lant, as it would be in the interest of both parties
and, oddly enough, as it would apparently be of
even greater interest to the Department to have
the question resolved, consideration should be
given to the advisability of an appeal and, at the
same time, the possibility of making a joint recom
mendation to the Court of Appeal regarding costs
or of arriving at some alternative arrangement, in
order to ensure that the appellant suffer no finan
cial loss or burden as a result of any appeal which,
in my view at least, would offer little chance of
success to the appellant, Mrs. Boutros, but some
very tangible and important benefits to the other
party, regardless of the ultimate finding of the
Court of Appeal.
SCHEDULE
To the citizenship case of MRS. MASSIKA BOUTROS.
Citizenship Act, sections:
5. (1) The Minister shall grant citizenship to any person
who, not being a citizen, makes application therefor and
(c) has an adequate knowledge of one of the official lan
guages of Canada;
(d) has an adequate knowledge of Canada and of the respon
sibilities and privileges of citizenship; and
(3) The Minister may, in his discretion, waive on compas
sionate grounds,
(a) in the case of any person, the requirements of paragraph
(1)(c) or (d); and
(4) In order to alleviate cases of special and unusual hard
ship or to reward services of an exceptional value to Canada,
and notwithstanding any other provision of this Act, the Gover
nor in Council may, in his discretion, direct the Minister to
grant citizenship to any person and, where such a direction is
made, the Minister shall forthwith grant citizenship to the
person named in the direction.
13....
(2) Forthwith after making a determination under subsec
tion (1) in respect of an application referred to therein but
subject to section 14, the citizenship judge shall approve or not
approve the application in accordance with his determination,
notify the Minister accordingly and provide him with the
reasons therefor.
(5) The Minister or the applicant may appeal to the Court
from the decision of the citizenship judge under subsection (2)
by filing a notice of appeal in the Registry of the Court within
thirty days from the day on which
(6) A decision of the Court pursuant to an appeal made
under subsectiôn (5) is, subject to section 18, final and conclu
sive and, notwithstanding any other Act of Parliament, no
appeal lies therefrom.
14. (1) Where a citizenship judge is unable to approve an
application under subsection 13(2), he shall, before deciding
not to approve it, consider whether or not to recommend an
exercise of discretion under subsection 5(3) or (4) or subsection
8(2) as the circumstances may require.
15. Notwithstanding section 28 of the Federal Court Act,
the Federal Court of Appeal does not have jurisdiction to hear
and determine an application to review and set aside a decision
or order made under this Act if the decision or order may be
appealed under section 13 of this Act.
Federal Court Act, section:
27. (1) An appeal lies to the Federal Court of Appeal from
any
(a) final judgment,
of the Trial Division.
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.