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T-2462-85
In re the Citizenship Act and in re Mary Frances Naber-Sykes
INDEXED AS: RE NABER-SYKES
Trial Division, Walsh J.—Calgary, May 9; Van- couver, May 22, 1986.
Citizenship — Residency requirements — Appeal from Citi zenship Judge's denial of citizenship on ground failing to satisfy residency requirements — Appellant studying in Canada number of years, becoming landed immigrant in December, 1984 — Act s. 5(1)(b) requiring three years' resi dence during four years preceding application date — Appel lant short 386 days — Appellant American citizen married to Canadian, completing Bar admission course but prevented from practicing until obtaining citizenship — Citizenship Judge considering hardship not sufficiently special or unusual to justify recommendation for exercise of ministerial discre tion under s. 5(4) — Bureaucratic directives limiting making of recommendation unacceptable and usurpation of judges' functions — Whether Federal Court can review discretion given Judge to make recommendation or limited to finding citizenship should or should not be recommended — Authority for proposition Court having power to do what is right to correct decisions Citizenship Judges required to take — Issue unsettled — No determination by higher court as no appeal — Liberal interpretation of "special and unusual hardship" war ranted — Further delay in granting citizenship constituting special and unusual hardship — Appeal maintained — Recommendation made pursuant to Act s. 5(4) — Citizenship Act, S.C. 1974-75-76, c. 108, ss. 5(1)(b) (as am. by S.C. 1976-77, c. 52, s. 128), (3),(4), 13 (as am. by S.C. 1984, c. 40, s. 15), 21 — Federal Court Rules, C.R.C., c. 663, R. 912.
Judges and Courts — Citizenship Judges — Bureaucratic directives as to circumstances in which statutory provision for recommendation to Governor in Council to be applied — Federal Court Judge criticizing Minister for abuse of execu tive and administrative functions in 1979 judgment — Unac ceptable if situation unchanged — Citizenship Judges to be guided only by wording of legislation, Federal Court decisions and own judgment in application of facts.
This is an appeal from the decision of a Citizenship Judge dismissing an application for citizenship on the ground that the appellant had not satisfied the residency requirements as set out in paragraph 5(1)(b) of the Citizenship Act. The appellant had studied in Canada for some time but did not become a landed immigrant until December, 1984. Under the Act, the
appellant was required to have accumulated three years of residence during the four year period preceding her request for citizenship. Of the 1095 days of residency required, the appel lant was short 386 days. In refusing to grant her citizenship, the Judge declined to recommend the application of subsection 5(4) which provides that, in cases of special or unusual hard ship, the Governor in Council may direct the Minister to grant citizenship.
The appellant is an American citizen now married to a Canadian. She came to Canada in 1976 to pursue her studies in Toronto. She attended the University of Toronto, earning a Bachelor of Arts degree in 1980. The appellant then entered law school at the same University and was advised that she would have to obtain Canadian citizenship to practice in Canada. Following graduation in 1983, she articled in Toronto and was subsequently hired by a Calgary law firm. She com pleted the Bar admission course in Alberta and would normally have been admitted to the Bar in August, 1985. A litigation specialist, she could not appear in court but only sit with firm associates conducting trials. A partner in the Calgary firm testified that the appellant, while very capable, would never be able to make up the years lost due to the delay in obtaining citizenship and would always be a year or two behind her contemporaries. The witness said that he considered this to be an unusual hardship. The Citizenship Judge had expressed the view that the hardship was not sufficiently special or unusual to justify making a recommendation pursuant to subsection 5(4).
Held, the appeal should be allowed and a recommendation made to the Governor in Council that the Minister be directed to grant citizenship.
Citizenship Judges invariably include in their decisions a standard clause stating that they have given consideration to the request for citizenship and decided against recommending to the Minister an exercise of his discretion under subsection 5(4). It would appear that the Act is complied with more as a matter of form than as a matter requiring a judicial inquiry. In Re Mitha, Cattanach J. held that it is for the Citizenship Judge to determine what constitutes "special and unusual hardship" within the meaning of the Act. His Lordship added that for the Minister to issue guidelines as to the interpretation of the section was unwarranted and an usurpation of the functions of the Citizenship Judge. That was a strong statement but it may be that Citizenship Judges continue to function under bureau cratic directives as to the rare circumstances in which they should apply subsection 5(4). If such is the case, this is entirely unacceptable. In reaching his decision, the Citizenship Judge should be guided by the wording of the Act, case law created on appeals and the facts of the case.
There also arises the question of whether, on an appeal to the Federal Court, the Court has the jurisdiction to review the Citizenship Judge's failure to make a recommendation or
whether its jurisdiction is limited to finding that citizenship "should or should not be recommended". Thurlow A.C.J. (as he then was) held in Re Salon that the Act contains no definition of the powers exercisable by the Court, only that final decisions are not subject to appeal. The inference to be drawn, having regard to the lack of definition and to the fact that the Court is a superior Court of record, is that the Court is empowered to correct any decision the Citizenship Judge is required to make in determining an application for citizenship. Thus, the Court has both the duty and the authority to correct, if necessary, the Judge's decision not to recommend the exer cise of ministerial discretion. Conflicting case law states that there exists no statutory authority giving the Court jurisdiction to review the Citizenship Judge's refusal to make a recommen dation under subsection 5(4). If the Judge refuses to make a recommendation, there remains the possibility of seeking executive action without the intervention of the Citizenship Judge. However, this question will remain unsettled unless the statute is amended as there is no appeal in citizenship matters from a decision of the Federal Court. In the case at bar, no useful purpose can be served by delaying the application of such a desirable citizen. Any further delay would continue to operate hardship for her. Under the circumstances, a liberal interpretation of "special and unusual hardship" is warranted.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Salon (1978), 88 D.L.R. (3d) 238 (F.C.T.D.); Re Maefs (1980), 110 D.L.R. (3d) 697 (F.C.T.D.); Re Turcan, [1978] 3 A.C.W.S. 291 (F.C.T.D.); Re Mitha, [1979] 3 A.C.W.S. 731 (F.C.T.D.); In re Kleifges and in re Citizenship Act, [1978] 1 F.C. 734; 84 D.L.R. (3d) 183 (T.D.).
CONSIDERED:
In re Albers and in re Citizenship Act, judgment dated May 11, 1978, Federal Court, Trial Division, T-75-78, not reported; In re Akins and in re the Citizenship Act, [1978] 1 F.C. 757; 87 D.L.R. (3d) 93 (T.D.); Re Zakow- ski, judgment dated February 28, 1986, Federal Court, Trial Division, T-2054-85, not yet reported; In re Amen- dola and in re Citizenship Act, judgment dated April 7, 1982, Federal Court, Trial Division, T-177-82, not reported; Re Conroy (1979), 99 D.L.R. (3d) 642 (F.C.T.D.); Re Anquist (1984), [1985] 1 W.W.R. 562 (F.C.T.D.).
COUNSEL:
J. R. Smith, Q.C., for appellant. William D. McFetridge, amicus curiae.
SOLICITORS:
MacKimmie Matthews, Calgary, for appel lant.
MacLeod Lyle Smith McManus, Calgary, amicus curiae.
The following are the reasons for decision ren dered in English by
WALSH J.: In this case the Citizenship Judge dismissed the appellant's application for citizen ship by decision communicated to her on October 11, 1985. In doing so he found that she had satisfied the requirements of the Act [Citizenship Act, S.C. 1974-75-76, c. 108], except for that of residency pursuant to paragraph 5(1)(b) [as am. by S.C. 1976-77, c. 52, s. 128] of the Act.
While the applicant had studied in Canada for some time, she only became a landed immigrant on the 29th of December 1984. Her application for citizenship was made on April 15, 1985 and pursu ant to paragraph 5(1)(b) of the Act she was required to have accumulated three years of resi dence in Canada in the four years preceding the date of the application, that is to say since April 15, 1981. She was entitled to one day credit for each day since her admission for permanent resi dence and one-half day for each day she was in Canada prior to such admission but within the four year period. On this basis she was calculated to have 677 half days to her credit and 108 full days from which were deducted one half of 153 days for absences from Canada before she acquired landed immigrant status or 76 days, leav ing her with a total credit of 709 days in a three year period for which 1095 days were required so she was short 386 days. There is no dispute about this calculation. It would also appear that were she to re-apply now, she would have the required number of days to fulfill the residence requirement of the Act. The Citizenship Judge also declined to recommend the application of subsection 5(4) of the Act which provides that in order to alleviate cases of special and unusual hardship or to reward services of an exceptional value for Canada, the Governor in Council may direct the Minister to grant citizenship. If such a direction is made, the
Minister shall forthwith grant it to the person named. The Citizenship Judge is required in all cases where citizenship is refused, to consider whether he should make such a recommendation and in this case he states that he examined the jurisprudence that was submitted to him and that there does not appear to be any unusual and special circumstances that would justify him to make such a recommendation, the cases to which he had been referred not being cases in which the three year residence requirement was involved. Neither is he willing to make a recommendation pursuant to subsection 5(3) on compassionate grounds, and this section is not an issue in the present appeal.
The facts in the present case are somewhat unusual in that it would be difficult to find an applicant more completely qualified to make a desirable citizen or for whom no useful purpose would be served by delaying the grant of citizenship.
The applicant is an American citizen now mar ried to a Canadian citizen. She came to Canada in September of 1976 to continue her education in Toronto and has resided in Canada ever since save for absences to return home on holidays. She attended the University of Toronto where she received her Bachelor of Arts degree in May, 1980, during the course of her studies having spent a year in France as an au pair girl in order to learn French, in which language she became fluent. She was then admitted to the University of Toronto to study law and had been informed at that time that she would have to have citizenship in order to practice law in Canada. She worked for the United States government in the summer of 1981 and 1982 as an immigration officer at the Toronto airport and graduated in law from the University of Toronto in 1983. She was indentured to the law firm of Osler, Hoskin and Harcourt in Toronto. Subsequently she was engaged by the law firm of MacKimmie Matthews in Calgary, another large and prestigious law firm. She completed her Bar
admission course in Alberta and normally would have been admitted to the Bar in August of 1985 but cannot practice because of lack of citizenship. She specializes in litigation, and can merely sit with one of the associates of the firm conducting the trial, ungowned, during hearings, whereas her contemporaries admitted to the firm in the same year can actually conduct trials themselves. She claims this constitutes an unusual hardship. She has been active in the Calgary community in connection with the Calgary Legal Guidance Clinic which provides advice for people who do not qualify for legal aid but cannot afford lawyers. She is permitted to give such advice but cannot follow up if the matter comes to court. During her college years in Toronto, she was a member of the Jessup Cup law debating team which won the Canadian moot court championship competing with teams from law schools throughout Canada and subse quently was runner-up in the world competition. The senior partners in the MacKimmie Matthews law firm think so highly of her that they are retaining her in their employ even though she cannot be admitted to the Bar of Alberta until acquiring citizenship. Stephen Hart Wood, Q.C. senior partner and former bencher of the Law Society who was formerly the managing partner of the law firm testified that they wish to maintain her association with them and that there is no reason for delaying her immediate admission to the Bar of Alberta save for the citizenship require ment. Alan Fradsham a partner of the firm who supervises the work of their law students testified that he assessed her very highly for her ability for litigation, hard work, professional dedication and analytical mind but that she will never be able to make up the lost years and will always be a year or two behind her contemporaries who were immedi-
ately admitted on completing their law course, which he considers to be an unusual hardship.
The Citizenship Judge expressed a valid view point when he did not consider that the hardship was sufficiently special or unusual to justify a recommendation by him pursuant to subsection 5(4). Judges at all levels do not necessarily agree or there would be no appeals nor dissenting judges in appellate courts. If, on this appeal, I reach a different conclusion from him it should not be considered as a criticism if I decide to make the recommendation. Comments made with respect to the administrative process, however, in at least two previous judgments are of considerable signifi cance. In the case of Re Turcan (No. T-3202-78) a judgment dated October 6, 1978 summarized in [1978] 3 A.C.W.S. 291 (F.C.T.D.) I had occasion to state:
I cannot fail to remark on the fact that it is the almost invariable practice of Citizenship Judges in advising the appli cant of the decision to include a paragraph stating:
I have considered and decided against recommending to the Minister an exercise of his discretion under subsection
5(4) of the Act.
In fact I have yet to encounter a case where a recommendation has been made. The question of what constitutes "special and unusual hardship" is of course a subjective one and Citizenship Judges, Judges of this Court, the Minister, or the Governor in Council might well have differing opinions on it. Certainly the mere fact of not having citizenship or of encountering further delays before it can be acquired is not of itself a matter of "special and unusual hardship", but in cases where as a conse quence of this delay families will be broken up, employment lost, professional qualifications and special abilities wasted, and the country deprived of desirable and highly qualified citizens, then, upon the refusal of the application because of the neces sarily strict interpretation of the residential requirements of the Act when they cannot be complied with due to circumstances beyond the control of the applicant, it would seem to be appropriate for the Judge to recommend to the Minister the intervention of the Governor in Council, and it is difficult to understand why even in the most clear cut and meritorious case a Citizenship Judge never makes such a recommendation although including in each decision a standard clause stating that he has given the matter consideration as he is required to do under section 14 of the Act. While it may be the fault of the applicant who frequently does not submit before the Citizen ship Judge all the evidence and information which he eventual ly submits in the appeal as to why the recommendation should be made, nevertheless I am forced to the conclusion that section 14 of the Act is complied with more as a matter of form than as a matter requiring a careful inquiry made in a judicial manner
as to whether a recommendation under subsection 5(4) should be made or not. I would not wish these remarks to be construed as a criticism of the Citizenship Judge in the present case or Citizenship Judges generally, but rather of what appears to have become a matter of policy which I do not believe complies with the spirit or intention of the Act. This strengthens my view that on an appeal, and with complete evidence before him, a Judge of this Court should have the right to make such a recommendation if he deems it advisable.
In the case of Re Mitha, summarized in [1979] 3 A.C.W.S. 731 (F.C.T.D.) (No. T-4832-78) judg ment dated June 1, 1979, Justice Cattanach at pages 22 to 24 stated:
What is a case of "special and unusual hardship" or a service "of an exceptional value to Canada" is a question of fact for the Citizenship Judge to decide.
By virtue of section 26, the Governor in Council may make regulations on topics lettered from (a) to (1).
Nowhere in that section is there a topic which permits of a regulation being made as to what constitutes "a special and unusual hardship" or service "of an exceptional value to Canada".
Accordingly the Citizenship Regulations made pursuant to section 26 of the Act could not and do not purport to legislate on a subject matter which is not authorized to be delegated by that section.
That being so the Citizenship Judge is restricted in reaching a decision to the language of subsection 5(4). The words "a special and unusual hardship" or service "of an exceptional value to Canada" are not technical words neither do they relate to any art or science from which it follows that those words should be understood in the same way as they are understood in common language.
It is for the Citizenship Judge to decide when a case before that Judge falls within the purview of the section and in making that decision the exclusive guidelines are the language of subsection 5(4) and any jurisprudence thereon and nothing else.
For the Minister or any of his employees, whether authorized by him or not, to purport to issue guidelines, information and advice as to the interpretation of the section is wholly unwar ranted. More than being unwarranted it is an abuse of the executive and administrative functions of the Minister and his employees. It is an assumption of the judicial function in that it purports to interpret the meaning of a statute.
Furthermore it is the usurpation of the functions of the Citizenship Judge. If this is countenanced then there is no need for the appointment of Citizenship Judges, with the judicial trappings with which they are surrounded, when they would not in fact exercise judicial independence but follow the direction of departmental employees. The function of the Citizenship Judges might as well be performed directly by those employees as the Citizenship Judges in actuality become like employees or
puppets of departmental employees despite the visual sem blances and trappings of a court.
This is a very strong statement, but I am given to understand that Citizenship Judges may still be operating under some bureaucratic directives or recommendations setting out the rare circum stances in which they should apply subsection 5(4) of the Act to make a recommendation. If this is the case, this is entirely unacceptable. In making the decision, they should be guided solely by the wording of the Act, jurisprudence created by Judges of this Court on appeals and their own good judgment in the application of the facts. They are in no way subservient to the Minister and certainly even less so to any directions which may be given to them by employees of the Ministry even to the Deputy Minister level.
Whether or not their recommendations if made are adopted is another matter of which the Court can have no knowledge but it is significant that a recommendation, if made, is not made to the Minister but to the Governor in Council who will then direct the Minister to grant citizenship if they deem it advisable. While it is true that this may be more a matter of form than of practice since the Governor in Council would most likely never have the matter brought before them for consideration unless the Minister, or what is more likely the Deputy Minister or someone else in the Depart ment at a lower level who has been delegated by the Minister pursuant to section 21 of the Act brings the matter to the attention of the Governor in Council. There is, nevertheless, an important legal distinction in that neither the Citizenship Judge nor a Judge of this Court sitting in appeal should be put in the position of making a recom mendation to a minister which can be over-ruled whereas it is quite appropriate to make a recom mendation to the Governor in Council that discre tion should be exercised.
I turn now to the question of whether on an appeal to the Federal Court pursuant to section 13 of the Act the Court may review the failure of the Citizenship Judge to make a recommendation pur suant to subsection 5(4) or whether the appeal must be limited only to finding that citizenship
should or should not be recommended. This has been a highly controversial area in which the Judges of this Court have disagreed. I have already referred to the Turcan judgment in which I found that this decision could be reviewed and a recommendation made by the Federal Court. I reached a similar conclusion, not surprisingly, in the case of In re Kleifges and in re Citizenship Act, [1978] 1 F.C. 734; 84 D.L.R. (3d) 183 (T.D.). Reference has already been made to the judgment of Justice Cattanach in Mitha. In the case of Re Salon (1978), 88 D.L.R. (3d) 238 (F.C.T.D.), a judgment dated June 28, 1978, Associate Chief Justice Thurlow, as he then was, in the Trial Division recognized that the appellant could not meet the residential requirements for citizenship. He nevertheless made a recommenda tion pursuant to subsection 5(4). Reference was made to the cases of In re Albers and in re Citizenship Act, judgment dated May 11, 1978, Federal Court, Trial Division, T-75-78, not report ed and In re Akins and in re the Citizenship Act, now reported in [1978] 1 F.C. 757; 87 D.L.R. (3d) 93 (T.D.), in which Justice Addy reached the conclusion that the recommendation was not sub ject to review, but Associate Chief Justice Thurlow states that he prefers the views expressed by myself and Justice Dubé in other cases. On pages 241-242 of the judgment he states:
Unlike most statutes which confer on parties a right of appeal to a Court, this Act contains no definition of the powers exercisable by the Court when an appeal is before it. All that is to be found as to the decision of the Court is in s-s. 13(6) which makes the decision of the Court final and not subject to any further appeal. As Parliament must have intended the appeal to be an effective means of obtaining relief, it is not to be inferred that the intention was that the Court should be powerless, and it appears to me that the inference to be drawn, having regard both to the absence of such a definition of powers as well as to the fact that the appeal is to a superior Court of record, is that the Court is vested with full power to do all that is right and just according to the law and for that purpose to do or to correct anything that the Judge from whose decision the appeal is taken was empowered or required to do in reaching his decision. One of the things the Citizenship Judge must do before declining to approve an application is consider whether to make a recommendation for the exercise of the powers vested in the Minister and the Governor in Council by s-ss. 5(3) and (4) respectively and, if he decides to make such a recom mendation, he must forward it to the Minister and await the decision of the appropriate authority thereon. In my opinion, on an appeal from a decision refusing approval of an application after declining to make a recommendation, this Court has both
the authority and the duty to consider and to correct, if necessary, both the decision of the Citizenship Judge on wheth er the statutory requirements have been met and the decision not to recommend the exercise of the powers of the Minister or the Governor in Council under s-ss. 5(3) and (4) respectively. In such a situation, the latter is as much a basis of his decision not to approve as is his decision with respect to the statutory qualifications.
After reviewing the particular facts of that case which of course are different from those in the present appeal, he concludes at page 243:
In the particular circumstances, the denial to him of citizen ship at this time can serve no public or other good. It can only serve to prejudice his medical career and to produce frustration and suffering both for him and his family while he is required to wait for another year or thereabouts to meet the residence requirement.
The case of Re Maefs (1980), 110 D.L.R. (3d) 697 (F.C.T.D.) deals with facts substantially simi lar to the present appeal. The headnote reads as follows:
Where a Citizenship Judge has found that an applicant for citizenship has failed to comply with the residence require ments of the Citizenship Act, 1974-75-76 (Can.), c. 108, but declines to recommend to the Governor in Council that he, in his discretion, direct the Minister to grant citizenship to a person in a case of unusual hardship under s. 5(4) of the Act, it is within the jurisdiction of the Federal Court on appeal to make such a recommendation. The Court should do so where the appellant has obtained an LL.B. degree from a Canadian university and has fulfilled the requirements for entry to the Bar, but was unable to apply for landed immigrant status because he entered Canada under a student visa, where it is shown that he was an excellent student and will be an outstand ing member of the Bar and citizen, and where failure to grant him citizenship will cause him undue hardship.
Grant D.J., in making the recommendation stated at page 701:
It is becoming more difficult each year for graduating law students to secure positions as a solicitor or barrister in legal firms because of the number graduating each year. He has now been living in Canada since August of 1974. He eventually will become a citizen and practise his profession here. There is no conceivable advantage to any one in delaying such opportunity to him. To delay the grant of citizenship will in my opinion create a great hardship to him.
In deciding that the recommendation should be made, he referred to the Salon, Turcan and Mitha cases (supra).
On the other side of the controversy, we have the judgments of Justice Addy in Akins and Albers already referred to and in Re Zakowski, judgment dated February 28, 1986, Federal Court, Trial Division, T-2054-85, not yet reported in which he stated:
The decision of the Citizenship Judge to not recommend that this condition be waived is not appealable to this Court.
In particular in the Akins case he had pointed out that the provisions of Rule 912 of the Federal Court Rules [C.R.C., c. 663] setting out the procedure for hearing of citizenship appeals which states that an appeal should take the form of a new hearing can have no effect in that it would only apply if appellate jurisdiction may exist which he concludes is not the case as the appeal pursuant to subsection 13(5) of the Act is, by virtue of subsec tion 13(2) only on the issue of whether the Citizen ship Judge should approve or not approve the application. He also points out that in the Kleifges case (supra) the comment on the right of the Court on appeal to consider the exercise of discre tion under subsection 5(4) of the Act, was obiter since it had found that the appeal should be grant ed on other grounds in any event.
Justice Cattanach in a judgment in the case of In re Amendola and in re Citizenship Act, judg ment dated April 7, 1982, Federal Court, Trial Division, T-177-82, not reported, apparently changing his opinion in the Mitha case, adopted the decision of Justice Addy in Akins, stating that if the Citizenship Judge declines to make a recom mendation there is no impediment to the appellant directing a request for executive action of the Minister without the intervention of the Citizen ship Judge. He recommended as he had in the case of Re Conroy (1979), 99 D.L.R. (3d) 642 (F.C.T.D.) that a court of justice should not enter tain any opinion with respect to which a decision would eventually be made on the ground of politi cal expediency.
Recently Justice Muldoon in the case of Re Anquist (1984), [1985] 1 W.W.R. 562 (F.C.T.D.) reached the same conclusion.
While I have great respect for the opinions expressed by my learned colleagues who feel that the Federal Court should not make the recommen dation on an appeal from a decision of the Citizen ship Judge refusing to do so, the question is one which must be considered as unsettled and will so remain unless the law is amended since there is no appeal from a decision of the Federal Court in citizenship matters, so no definitive determination to settle the controversy can be made by a court at a higher level. Not only would I be inconsistent if I did not follow my own earlier decisions in the matter, but I also adopt the conclusions of Associ ate Chief Justice Thurlow, as he then was, in the Salon case (supra) and of Deputy Justice Grant in the Maefs case. In the particular circumstances of this case not only is it evident that the appellant would make a most desirable citizen, but she is prevented from fulfilling the career for which she has prepared herself by the rigours of the residen tial requirement and I am satisfied that any fur ther delay will continue to operate a hardship for her. While it remains a matter of opinion as to whether this is a case of "special and unusual hardship", I am disposed to grant a liberal inter pretation of this and find that in her situation, the hardship can be considered as being special and unusual.
The appellant's appeal is therefore maintained to the extent of making a recommendation to the Governor in Council pursuant to subsection (4) of section 5 of the Citizenship Act to exercise discre tion to direct the Minister to grant citizenship to the appellant.
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