C.A.C. 100-77, C.A.C. 101-77
In re the Citizenship Act and in re Kau Chuek
Cheung and Mrs. Kau Chuek Cheung
Trial Division, Cattanach J.—Ottawa, February 6
and 8, 1978.
Citizenship and immigration — Application commenced
before and continued after coming into force of new Act —
Heard pursuant to former Act on instructions from Registrar
of Citizenship — Ministerial discretion to permit cases to
continue under former Act — Authority to exercise this dis
cretion not yet delegated to Registrar of Citizenship — Case to
be determined pursuant to new Act — No recommendation
had been made to Minister on rejection of applications —
Referred to Citizenship Judge for consideration whether or not
to recommend exercise of Minister's discretion — Canadian
Citizenship Act, R.S.C. 1970, c. C-19, s. 10(1)(e),(J) — Citi
zenship Act, S.C. 1974-75-76, c. 108, ss. 5(1)(c),(d), 14, 21,
35(1).
This is an appeal from a Citizenship Judge's dismissal of
appellants' applications for citizenship. The applications, sub
mitted before the coming into force of the new Act, were
decided after it came into force but according to the provisions
of the former. Act, as per instructions distributed by the Regis
trar of Citizenship. When this blanket letter was written, the
authority contemplated to be exercised by the Minister, under
section 35(1) of the new Act, had not been delegated to the
Registrar of Citizenship in accordance with section 21 of the
new Act.
Held, the appeal is allowed. The instruction letter to all
citizenship judges was written by the Registrar of Citizenship,
or by someone on his behalf, before the authority to be exer
cised by the Minister under section 35(1) of the new Act had
been delegated under section 21. There was, therefore, no
determination by the Minister or anyone delegated to act on his
behalf that the applications should be considered under the
former Act. It follows that the Citizenship Judge was obliged to
complete these proceedings under the new Act. The Citizenship
Judge, as he proceeded under the former Act, did not consider
making a recommendation to the Minister before rejecting the
applications, as required under the new Act. The applications
are referred back to that Judge that he might consider whether
he should recommend the Minister's exercising his discretion
under section 14.
CITIZENSHIP appeal.
COUNSEL:
Mrs. Chung Chun Hong appearing on behalf
of both appellants.
Paul D. Beseau, amicus curiae.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: These are two appeals from
decisions given by a Citizenship Judge. While
there are two appeals which were heard separately
because the considerations applicable to each
appeal are identical only one set of reasons for
judgment, applicable to both appeals as indicated
in the style of cause, is being prepared.
The first appellant was born in China on May
20, 1920, which places him in his 57th year, and
was admitted to Canada, I assume with landed
immigrant status, on November 7, 1971 which
results in his having been resident in Canada for
six years and two months at this time.
The second appellant was also born in China but
on August 3, 1917 which puts her in her 60th year.
Both appellants are of Chinese ethnic origin.
The appellants were married in China on
December 15, 1936 and are approaching their
42nd wedding anniversary. The second appellant
accompanied her husband, the first appellant, to
Canada on November 7, 1971 and likewise has
been in Canada for six years and two months.
There was only one daughter to the marriage,
Mrs. Chung Chun Hong, who is married and
living in Ottawa, Ontario.
The appellants came to Canada to make their
home with their daughter and son-in-law.
I have no doubt whatsoever that these two
appellants are industrious and self-supporting
persons.
The first appellant, the husband, has obtained
work in a restaurant in Ottawa specializing in
Chinese food. In the notice of appeal it is stated
that his energies are devoted to working to support
his family.
The second appellant has assumed the responsi
bility of caring for her daughter's household par
ticularly her six grandchildren which is a full-time
occupation but one happily assumed by a
grandmother.
In each notice of appeal it is stated that each
appellant is "an illiterate person for the last 5
years". In its common parlance "illiterate" means
a person unable to read or write. Therefore I fail
to follow how a person can be illiterate for the
"last 5 years" and be literate for the preceding
years.
It appears that neither appellant has had any
formal education but the husband acknowledged
attendance at school in China for two years.
Both appellants applied for certificates of
Canadian citizenship on November 15, 1976. The
husband gave his citizenship or nationality as
"Chinese" but his wife, in response to the same
question, gave the answer "stateless". This I doubt
but since no evidence of Chinese law was adduced
before me I cannot question the accuracy of that
statement but it has no material bearing in this
appeal before me.
In the first instance the applications were con
sidered by a Citizenship Judge in Ottawa, Ontario.
The Citizenship Judge rejected both applica
tions on February 23, 1977 on the two following
grounds: (1) that neither applicant had an ade
quate knowledge of either the English or French
language as is required by section 10(1)(e) of the
Canadian Citizenship Act (R.S.C. 1970, c. C-19)
and (2) that neither applicant had an adequate
knowledge of the responsibilities and privileges of
Canadian citizenship as is required by section
10(1)(J) of the Canadian Citizenship Act (supra)
for which two reasons he concluded that neither
applicant was a fit and proper person to be granted
Canadian citizenship and refused the applications
accordingly.
By notices of appeal, both dated May 17, 1977
and filed on May 24, 1977, both applicants before
the Citizenship Judge appealed his decisions. The
notices of appeal do not set forth any grounds of
substance as to the correctness of the Citizenship
Judge's decisions other than to proffer explana
tions as to why neither appellant had acquired
proficiency in the English language which is
apparently the language of their choice.
The appellants were present before me and after
a careful examination of each, with the help of the
amicus curiae to whom I acknowledge my indebt
edness for his assistance, I am in complete agree
ment with the conclusion of the Citizenship Judge
that neither appellant has an adequate knowledge
of English, one of the official languages of
Canada, as is required as a condition precedent to
the grant of Canadian citizenship by virtue of
section 5(1)(c) of the Citizenship Act (S.C. 1974-
75-76, c. 108).
For my own part I found each appellant's profi
ciency in the English language so inadequate that I
was unable to communicate with either appellant
in that language so that it was impossible for me to
ascertain if either appellant has an adequate
knowledge of Canada and of the responsibilities
and privileges of citizenship which is also a condi
tion precedent to a grant of citizenship under
section 5(1)(d) of the Citizenship Act (supra). On
the assumption that the Citizenship Judge
experienced equal difficulty in communicating
with the appellants as I did then I fail to follow
how he could conclude whether either appellant
has an adequate knowledge of the responsibilities
and privileges of Canadian citizenship under sec
tion 10(1)(f) of the Canadian Citizenship Act
(R.S.C. 1970, c. C-19) as he purported to do
unless he construed the section in question as
casting an onus on the appellants to so establish
and concluded that neither of them had discharged
that onus but he did not say so. All that he did was
to utilize a printed form provided to him and
categorically indicated that neither appellant had
the requisite knowledge in this respect.
The Canadian Citizenship Act (R.S.C. 1970, c.
C-19) (which I shall herein refer to as the "former
Act") was repealed by the Citizenship Act (S.C.
1974-75-76, c. 108) (which I shall hereinafter
refer to as the "new Act"), the new Act to come
into force on a day to be fixed by proclamation in
accordance with section 43 thereof.
The Citizenship Act, the new Act, was pro
claimed to be in force and have effect upon, from
and after the 15th day of February 1977.
However there is a transitional period and cir
cumstance provided in section 35(1) of the new
Act, Part IX, ranged under the heading "Transi-
tional and Repeal". That section reads:
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.
There is no question that the proceedings before
the Citizenship Judge were commenced under the
former Act, that they were not completed before
February 15, 1977 the day upon which the new
Act came into force by proclamation and that the
Citizenship Judge dealt with these two applica
tions before him under the former Act.
This is abundantly clear from the date of his
decisions which are both dated February 23, 1977
which is well after February 15, 1977 and from the
forms he used therefor in which reference is made
to the specific requirements outlined in specific
sections of the former Act.
Prior to the hearing of these appeals I requested
the amicus curiae to be prepared to assist the
Court by putting himself in a position to answer
seven questions posed.
Two of those questions were:
(1) What determination under section 35(1), if any was made
by the Registrar of Citizenship as to proceedings before the
citizenship judge and communicated to him, and
(2) Assuming no such determination was made and com
municated to the citizenship judge, what is the effect of section
36 of the Interpretation Act (R.S.C. 1970 Chap. I-23).
The amicus curiae ascertained that a letter was
written to all citizenship judges by the Registrar of
Citizenship or someone on his behalf to the effect
that proceedings begun under the former Act but
not completed before the coming into force of the
new Act should be continued as proceedings under
the former Act (that is my recollection but if it is
inaccurate it has no material bearing for reasons I
shall outline) but if any difficulty arose in any
particular application, then the citizenship judge
should communicate with the Registrar of Citizen
ship for advice and direction.
However the amicus curiae also ascertained that
at the time this blanket letter was written to the
citizenship judges the authority contemplated to be
exercised by the Minister, in his discretion, under
section 35(1) of the new Act quoted above, had
not been delegated to the Registrar of Citizenship
in accordance with section 21 of the new Act
which reads:
21. Anything that is required to be done or that may be done
by the Minister under this Act or the regulations may be done
on his behalf without proof of the authenticity of the authoriza
tion by any person authorized by the Minister in writing to act
on his behalf.
That being so there was no determination by the
Minister or anyone delegated to act on his behalf
that the applications before the Citizenship Judge
should be continued under the former Act.
In the absence of such determination it follows
that the Citizenship Judge was obliged to complete
the proceedings in these two applications before
him under the new Act and not under the former
Act as he obviously did. This was the submission
made by the amicus curiae after his consideration
of the Interpretation Act (supra) with which I am
in agreement.
There are several major differences between the
provisions of the former Act and the new Act.
Under the former Act by virtue of section
10(1)(e) thereof if an applicant for citizenship was
forty years of age or more at the time of the
applicant's lawful admission to Canada then if
such an applicant did not have an adequate knowl
edge of the English or French language and had
been continuously resident in Canada for more
than 10 years the requirement of adequate knowl
edge of either such language was waived.
Here both appellants were over forty years of
age on their lawful admission to Canada on
November 7, 1971. The ten-year period would
elapse on November 7, 1981, some three years and
ten months hence. But the provision is eliminated
in the new Act.
In its place section 14 provides that where a
citizenship judge is unable to approve an applica
tion for the grant of citizenship under section
13(2) of the new Act, and section 14(1) includes a
reference to section 5(3) of the new Act, which in
turn refers to section 5(1), paragraph (c) of which
requires that an applicant shall have an adequate
knowledge of one of the official languages of
Canada and paragraph (d) which requires an
applicant to have an adequate knowledge of
Canada and of the responsibilities and privileges of
citizenship which paragraphs are basically the
same as sections 10(1)(e) and (f) of the former
Act, then the citizenship judge shall consider
whether or not to recommend to the Minister to
exercise his discretion and waive the requirement
of an adequate knowledge of either official lan
guage (that is section 5(1)(c) of the new Act) or
an adequate knowledge of Canada and the respon
sibilities of citizenship (which is section 5(1)(d) of
the new Act).
For greater certainty I reproduce section 14 of
the new Act:
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.
(2) Where a citizenship judge makes a recommendation for
an exercise of discretion under subsection (1), he shall
(a) notify the applicant;
(b) transmit the recommendation to the Minister with the
reasons therefor; and
(c) approve or not approve the application in accordance
with the decision that has been made in respect of his
recommendation forthwith upon its communication to him.
The Citizenship Judge in these two applications
obviously proceeded under the former Act for the
reasons I have outlined and he did not consider
making a recommendation to the Minister as he
was obliged by the use of the mandatory word
"shall" in section 14 before rejecting the applica
tions as he did forthwith.
Accordingly I allow both appeals and refer both
applications back to the Citizenship Judge in order
that he might direct his attention, in the circum
stances of these appeals, to a consideration of
whether he should recommend to the Minister an
exercise of his discretion in accordance with the
provisions of section 14 of the new Act.
The conclusion I have reached and the disposi
tion of these appeals at which I have arrived
absolves me from deciding whether the Registrar
of Citizenship was authorized to determine that
these two appeals should be continued under the
former Act before the Federal Court of Canada as
he did by letter dated August 30, 1977 addressed
to the Registry, Citizenship Appeal Court rather
than to the Registry, Federal Court of Canada
which, incidentally he did not personally sign but
permitted someone else to sign on his behalf which
on its face offends against the maxim delegata
potestas non potest delegari and to comment on
other patent inaccuracies therein bearing in mind
that the notices of appeal are both dated May 17,
1977 and were both filed on May 24, 1977 both of
which dates are subsequent to February 15, 1977
the date upon which the new Act was proclaimed
to be in effect. The question which arises is wheth
er these two appeals, launched after February 15,
1977, can conceivably be proceedings commenced
under the former Act and not completed before
the new Act came into force within the meaning of
section 35(1) of the new Act.
I am also absolved by the course I have adopted
from deciding if the Federal Court of Canada,
Trial Division, being a court of appeal in the true
sense from a citizenship judge, should give the
order that the Citizenship Judge ought to have
given under section 14 of the new Act if the
circumstances so dictate. In this respect consider
ing the respective ages of the appellants and their
lack of educational advantages in their earlier
lives, it would take a miracle for them to acquire
any proficiency in a tongue strange to them at this
late date.
I expressly refrain from expressing any opinion
on these two questions because it is not necessary
for me to do so and to leave my brother judges
completely untrammelled by any remarks of mine
should either question arise before them for their
decision.
I repeat, the appeal of each appellant herein is
allowed and the appeal of each appellant is
referred back to the Citizenship Judge to consider
whether he shall make a recommendation or not to
the Minister for an exercise of his discretion in
accordance with section 14 of the Citizenship Act.
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.