T-3044-77
In re the Citizenship Act and in re Habib Khoury
(Appellant)
Trial Division, Walsh J.—Montreal, January 10;
Ottawa, January 17, 1978.
Citizenship and immigration — Residency — Appeal from
dismissal of application for citizenship for want of sufficient
length of residency — Although abroad for part of three-year
period, salary and taxes paid in Canada, and intention to
return — Interpretation of "residence" within s. 5(1)(b)(ii), and
whether or not it can be coloured to mean "domicile" —
Citizenship Act, S.C. 1974-75-76, c. 108, s. 5(1)(b)(ii) —
Canadian Citizenship Act, R.S.C. 1970, c. C-19, s. 2.
Appellant's application for citizenship was denied by the
Citizenship Court because he had not been resident in Canada
for a total duration of three years of the four-year period
immediately preceding his application, as required by section
5(1)(b)(ii) of the Citizenship Act. Appellant, although he had
been working abroad under a CIDA contract, was paid and
taxed in Canada, and fully intended to return. The interpreta
tion of the word "residence" within the meaning of section
5(1)(b)(ii)—and whether it can be coloured to mean "domi-
cile"—is in issue in this appeal.
Held, the appeal is dismissed. Although appellant perhaps
considered himself a permanent resident of Canada following
his admission, he cannot be held to have been a resident within
the meaning of this section during the periods when he was
actually residing abroad because of his business assignments.
There is no justification for interpreting "residence" as "domi-
cile". The Citizenship Judge did consider the possibility of
recommending ministerial discretion. Waiver of the residence
requirement for "any person under disability", however, is not
applicable. The only avenue open to the appellant is a direction
by the Governor in Council to the Minister to grant citizenship
"In order to alleviate cases of special and unusual hardship or
to reward services of an exceptional value to Canada".
In re Canadian Citizenship Act and in re Laprade [1974]
1 F.C. 196, followed. Blaha v. Minister of Citizenship &
Immigration [1971] F.C. 521, followed.
APPEAL.
COUNSEL:
Habib Khoury appearing on his own behalf.
Pierre Paquette, amicus curiae.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an appeal from a decision of
the Citizenship Court dated June 23, 1977, follow
ing a hearing on June 20, 1977, of appellant's
application for Canadian citizenship on the basis
of section 5(1)(b)(ii) of the Act' requiring three
years of residence in Canada during the four-year
period preceding the application which was made
on March, 16, 1977. The- decision points out that
the presiding judge also considered the possibility
of recommending the exercise of ministerial discre
tion on compassionate grounds by virtue of sec
tions 5(3) and 5(4) of the Act but that the law
gave him no latitude L to do so.
Appellant was present at the hearing and Pierre
Paquette acted as amicus curiae.
At the outset it may be said that this is a very
sympathetic case and that the amicus curiae him
self did his best to find a way in which the appeal
could be allowed. The appellant arrived in Canada
on September 9, 1970 as a landed immigrant and
has been working for Canadian employers notably
CIDA and pursuing graduate studies in Canada
since that time. As his application and evidence
given by him at the: hearing ofthe appeal discloses
he was sent by his employers Cartier Engineering
on behalf of CIDA on an assignment to Africa on
July 20, 1974, returning seven months later on
February 10, 1975. On July 17, 1975, he was sent
on a further assignment to Africa returning one
year later on July 17, 1976. During these assign
ments overseas he received his salary, paid by
deposit in Canada with the Bank of Montreal, and
Canadian income tax and other deductions were
made and tax returns filed in Canada despite his
absence. His absences totalled 19 months during
the four-year period preceding his application on
Marchi 6, 1977, and hence he was only in Canada
for 29 months during the said -period instead of - the
36 months required by section 5(1)(b)(ii) which
reads as follows:
S.C. 1974-75-76, c. 108.
5. (1) The Minister shall grant citizenship to any person
who, not being a citizen, makes application therefor and
(b) has been lawfully admitted to Canada for permanent
residence, and has, within the four years immediately preced
ing the date of his application, accumulated at least three
years of residence in Canada calculated in the following
manner:
(ii) for every day during which he was resident in Canada
after his lawful admission to Canada for permanent resi
dence he shall be deemed to have accumulated one day of
residence;
The Act does not define residence nor domicile.
It was pointed out by the amicus curiae that under
the former Act 2 there is _ a definition of "place of
domicile" in section 2 as follows:
"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;
and that perhaps this could be applied in the
present case in the absence of any definition in the
present Act and that appellant could be considered
as having resided in Canada throughout the four-
year period despite his absences while working for
CIDA as his salary and income tax were paid in
Canada and he was absent only on working assign
ments with intention of returning to his residence
here. This might very well be the case if the
question was one of determining his domicile; it
might very well be concluded that although he is
not yet a Canadian citizen he has acquired a
Canadian domicile and intends to make Canada
his permanent abode. However unfortunately it is
not the concept of domicile which we are called
upon to determine but the meaning of the words
"residence in Canada" as used in section
5(1)(b)(ii) of the new Act under which this
application was and had to be made. With regret I
can find no justification for interpreting "resi-
dence" as "domicile", and although appellant did
perhaps consider himself as a permanent resident
of Canada following his admission, certainly he
cannot be held to have been a. resident within the
meaning of this section during the periods when he
was in actual fact residing abroad as a result of his
business assignments. Even under the provisions of
the old Act I was forced to reach the same conclu
sion in In re Canadian Citizenship Act and in re
2 R.S.C. 1970, c. C-19.
Laprade 3 . In that case I had occasion to refer to
the decision of Pratte J. in the case of Blaha v.
Minister of Citizenship & Immigration 4 which
was subsequently followed by Collier J. in In re
Goldston 5 . In the Blaha case Pratte J. stated at
pages 524-525:
As the Act does not define the words "reside" and "residence",
we must arrive,(at their meaning 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".
In my opinion a person is resident in Canada within the
meaning of the Canadian Citizenship Act only if he is physical
ly 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.
That he is not a Canadian citizen is a serious
handicap to appellant in connection with employ
ment opportunities. He testified that in the two
fields for which he possesses special qualifications,
namely biology and agriculture, it is necessary for
him to be a member of certain professional asso
ciations involved as a condition of employment,
and that as a condition of such membership he has
to be a, Canadian citizen. This evidence was con
firmed in part by a letter he produced dated July
28, 1977, from Pluritec Consultants which indi
cates that they expect at an early date to have
work for him in Africa as an entomologist. The
letter concludes:
[TRANSLATION] For this purpose it will be appreciated if Mr.
H. T. Khoury can furnish us with a certificate of Canadian
citizenship.
The fact that his problem is looked upon sympa
thetically by Ministers of the Crown also appears
from two letters which were, produced, the first
being a letter from the Honourable Jeanne Sauvé,
3 [1974] I F.C. 196.
4 [1971] F.C. 521.
5 [1972] F.C. 559.
Minister of Communications, to the Honourable
John Roberts, Secretary of State, a copy of this
letter being sent by her to. appellant. In her letter
she sets out his problem stating that he has
appealed the decision of the Citizenship Court.
She concludes:
[TRANSLATION] I would appreciate it my dear colleague if you
would study this request attentively because I believe that for
compassionate grounds Mr. Khoury should be granted his
citizenship. He must leave again soon for CIDA for several
months and all the proceedings will have to be recommenced
when he returns if he has not succeeded in his appeal.
In reply to this letter the Honourable Mr. Roberts
wrote on October 28, 1977 stating that as the
result of the appeal to the Federal Court he cannot
of course make any decision until it has been
decided.
As I have already indicated the Citizenship
Judge took into consideration the possibility of
recommending the exercise of ministerial discre
tion on compassionate grounds pursuant to sec
tions 5(3) and 5(4) of the Act. Under section
5(3)(b) the residence requirement of section
5(1)(b) may be waived but this appears to only
apply "in a case of any person under a disability"
which would not be the case of appellant. Section
5(4) provides that the Governor in Council may
direct the Minister to grant citizenship "In order
to alleviate cases of - special and unusual hardship
or to reward services of an exceptional value to
Canada". This would appear to be the only avenue
open to appellant and it is by no means certain
whether such an exceptional step would be taken
in his case. Under the former Act section 10(6)(b)
provided that any period during which an appli
cant for a certificate of citizenship "was employed
outside of Canada in the public service of Canada
or of a province, other than as a locally engaged
person" would be treated as equivalent to a period
of residence in Canada for the purposes of comply
ing with the residential requirements. Quite aside
from the fact that it would have to be determined
whether appellant's employment by CIDA could
be considered as employment "in the public service
of Canada" which is doubtful, there is no similar
provision in the present Act and therefore appar
ently periods of service outside the country do not
count in the calculation of residence requirements.
With great regret therefore I find that the deci
sion appealed from is a correct interpretation of
the law and that the appeal must be dismissed.
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.