T-300-01
2002 FCT 1221
Maria Salome Alfonso (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Alfonso v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Blais J.--Montréal, November 6; Ottawa, November 26, 2002.
Citizenship and Immigration -- Status in Canada -- Citizens -- Citizenship applicant seeking benefit, under Citizenship Act, s. 5(1.1), of residence with Canadian common-law spouse while latter employed abroad in provincial public service -- Meaning of "spouse" in Citizenship Act, s. 5(1.1) -- Modernization of Benefits and Obligations Act, replacing "spouse" in s. 5(1.1) with "spouse or common-law partner", not applicable as not yet in force -- Citizenship Judge did not err in using discretion to comply with Citizenship Policy Manual, stating "spouse" refers to married person -- As criteria in Citizenship Act, s. 5(1) cumulative, fact Judge erred in assessing applicant's knowledge of Canada, by asking questions on four topics identified in Immigration Regulations, s. 15(c) when required to choose one, irrelevant.
Construction of Statutes -- Whether "spouse" in Citizenship Act, s. 5(1.1) including common-law spouse -- Modernization of Benefits and Obligations Act, replacing "spouse" in Citizenship Act, s. 5(1.1) with "spouse or common-law partner" , not applicable as not yet in force -- Inappropriate to borrow definition from Immigration Regulations, 1978.
The applicant, a citizen of the Philippines, arrived in Canada in November 1996, and settled with her common-law partner in the Montréal area. From June 1997 to June 1999, the applicant lived in Hong Kong with her partner who was assigned there as department manager with the Service d'immigration du Québec. Exactly three years after her arrival in Canada, the plaintiff filed her application for Canadian citizenship. The applicant and her partner were married in March 2000, in Montréal. The Citizenship Judge denied the application on the basis that the plaintiff met neither the residence requirements in paragraph 5(1)(c) (accumulation of three years residence within the four years immediately preceding the application) of the Citizenship Act nor the knowledge requirements of paragraph 5(1)(e) of the Act. Subsection 5(1.1) provides that any day spent abroad residing with a spouse employed outside of Canada in the provincial public service shall be equivalent to one day of residence. The issues were whether "spouse" in subsection 5(1.1) is limited to married spouses, and whether the Judge erred by asking the applicant questions on the four topics identified in Immigration Regulations, 1978, paragraph 15(c).
Held, the appeal should be dismissed.
"Spouse" in subsection 5(1.1) of the Citizenship Act is limited to married spouses. There is no definition of "spouse" in the Act, and the amendment to the Citizenship Act found in the Modernization of Benefits and Obligations Act, replacing "spouse" with "spouse or common-law partner" in subsection 5(1.1) was not applicable because the provision had not yet come into force. The Citizenship Policy Manual, on the other hand, explicitly stated that "spouse" refers to a married person, but such guidelines are merely administrative practices. However, it would be inappropriate to borrow the definition of "spouse" from the Immigration Regulations, 1978. In not taking into account the Modernization Act, and in using his discretion to comply with the Manual, the Citizenship Judge did not err in law. This case emphasized the importance of determining the date of coming into force of amendments.
The Citizenship Judge erred in fact in using a criterion alien to the Act to assess the applicant's knowledge of Canadian reality. Whereas paragraph 15(c) of the Citizenship Regulations, 1993 requires that the judge must choose one of the topics mentioned in subparagraphs (i) to (iv) to test adequate knowledge of Canada, this is not what the Judge did herein. Furthermore, in his decision, the Judge was silent as to the sequence of the questions asked and the topic chosen at random. This was an error of law. However, it did not matter because the criteria listed in subsection 5(1) are cumulative and the applicant did not meet two of those criteria..
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
| Citizenship Act, R.S.C., 1985, c. C-29, ss. 5(1), (1.1) (as enacted by R.S.C., 1985 (3rd Supp.), c. 44, s. 1), 14(5). |
| Citizenship Regulations, 1993, SOR/93-246, s. 15 (as am. by SOR/94-442, s. 3). |
| Immigration Act, R.S.C., 1985, c. I-2. |
| Immigration Regulations, 1978, SOR/78-172, s. 2(1) "spouse" (as am. by SOR/85-225, s. 1). |
| Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, ss. 74, 75, 76, 77, 340. |
cases judicially considered
applied:
Huda (Re), [1999] F.C.J. No. 538 (T.D.) (QL); Bhardwaj v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 170 (F.C.T.D.).
authors cited
Citizenship Policy Manual, Chapter CP5. Ottawa: Citizenship and Immigration Canada.
Côté, P.-A. The Interpretation of Legislation in Canada, 3rd ed. Toronto: Carswell, 2000.
Oxford English Dictionary, 2nd ed. Oxford: Clarendon Press, 1989, "choice", "choose".
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. Toronto: Butterworths, 1994.
Tremblay, Richard. L'entrée en vigueur des lois: principes et techniques. Cowansville, Que.: Éditions Yvon Blais, 1997.
APPEAL from denial of Canadian citizenship on the grounds of failure to satisfy the residency and knowledge requirements of Citizenship Act, paragraphs 5(1)(c) and (e). Appeal dismissed.
appearances:
Daniel Paquin for plaintiff.
Michel Pépin for defendant.
solicitors of record:
Alarie, Legault, Beauchemin, Paquin, Jobin, Brisson & Philpot, Montréal for plaintiff.
Deputy Attorney General of Canada for defendant.
The following is the English version of the reasons for order and order rendered by
[1]Blais J.: This is an appeal under subsection 14(5) of the Citizenship Act, R.S.C., 1985, c. C-29 (the Act) from the decision rendered November 9, 2000 by Citizenship Judge George Springate, denying the application for Canadian citizenship filed by the applicant on the ground that she did not meet the requirements of paragraphs 5(1)(c) and (e) of the Act.
FACTS
[2]The applicant was born January 14, 1958, in San Mateo Rizal, in the Philippines.
[3]On November 3, 1996, she arrived in Canada and was admitted as a permanent resident. As of that date, she settled with her common-law partner, Camille Côté, in the Montréal area.
[4]From June 1, 1997 to June 30, 1999, a total of 759 days, the applicant lived in Hong Kong together with Mr. Côté, who was assigned there as a department manager with the Service d'immigration du Québec.
[5]During her stays abroad, the applicant says she accompanied Mr. Côté while he was performing his duties.
[6]On November 3, 1999, three years to the day after her arrival in Canada, the applicant filed her application for Canadian citizenship.
[7]The applicant and Mr. Côté married on March 25, 2000, in Montréal.
DECISION OF CITIZENSHIP JUDGE
[8]On November 9, 2000, the Citizenship Judge, George Springate (the Judge), denied the application for two reasons. First, the applicant did not meet the residence requirements in paragraph 5(1)(c) of the Act: she had not established or maintained residence in Canada, having failed to demonstrate in her intentions or in the facts that her way of life was focussed on Canada.
[9]Second, the applicant did not satisfy the requirements of paragraph 5(1)(e) of the Act, in that she did not have an adequate knowledge of Canada and of the responsibilities and privileges of citizenship.
ISSUES
[10]Did the Citizenship Judge err in denying the applicant's citizenship application on the basis that she did not meet the requirements of paragraphs 5(1)(c) and (e) of the Citizenship Act, thereby necessitating the intervention of this Court?
STATUTORY FRAMEWORK
[11]Subsection 5(1) of the Act sets out the necessary criteria for obtaining citizenship:
5. (1) The Minister shall grant citizenship to any person who
. . .
(c) has been lawfully admitted to Canada for permanent residence, has not ceased since such admission to be a permanent resident pursuant to section 24 of the Immigration Act, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:
(i) for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and
(ii) for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence;
. . .
(e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and [Emphasis added.]
[12]Subsection 5(1.1) [as enacted by R.S.C., 1985 (3rd Supp.), c. 44, s. 1] of the Act defines the notion of "day of residence":
5. . . .
(1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the public service of Canada or of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1). [Emphasis added.]
[13]Section 15 [as am. by SOR/94-442, s. 3] of the Citizenship Regulations, 1993 [SOR/93-246] (the Regulations) states how to assess a citizenship applicant's knowledge of Canada:
15. The criteria for determining whether a person has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship are that, based on questions prepared by the Minister, the person has a general understanding of
(a) the right to vote in federal, provincial and municipal elections and the right to run for elected office;
(b) enumerating and voting procedures related to elections; and
(c) one of the following topics, to be included at random in the questions prepared by the Minister, namely,
(i) the chief characteristics of Canadian social and cultural history,
(ii) the chief characteristics of Canadian political history,
(iii) the chief characteristics of Canadian physical and political geography, or
(iv) the responsibilities and privileges of citizenship, other than those referred to in paragraphs (a) and (b). [Emphasis added.]
ANALYSIS
1. Did the Citizenship Judge err in law in limiting the interpretation of the word "spouse", contained in subsection 5(1.1) of the Act, to married spouses?
[14]The applicant submits that there is no definition of the word "spouse" in the Act. Accordingly, she argues, the word must be read as contemplating and including common-law partners, as recognized in Canada in the modern conception of spouses. This conception, she says, would be in harmony with the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C. 1985, Appendix II, No. 44]] and consistent with Parliament's intention as expressed in the Modernization of Benefits and Obligations Act [S.C. 2000, c. 12] (the Modernization Act).
[15]This Act was assented to on June 29, 2000. Its sections refer to the sections of the Acts it amends. In this case, sections 74 to 77 of this Act refer to the Citizenship Act. Thus, under the title "Amendments not in force" [in htttp://laws.justice.gc.ca/en/C--29/ notinforce.html] in the latter Act, we are referred to sections 74 and 75 of the Modernization Act:
74. Subsection 2(1) of the Citizenship Act is amended by adding the following in alphabetical order:
"common-law partner", in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year;
75. The Act is amended by replacing "spouse" with "spouse or common-law partner" in subsection 5(1.1). [Underlining added.]
[16]Since a statute that has been given royal assent must, in theory, come into force in order to be effective, it could be argued that these amendments are not applicable to those who will be subject to it.
[17]In The Interpretation of Legislation in Canada (3rd ed.) (Scarborough: Carswell, 2000), Pierre-André Côté states, at pages 90-92:
A legislative text exists from its adoption, but becomes binding only upon its commencement or its coming into force. . . .
Nevertheless, it is theoretically possible for a statute to have an effect from the date of its royal assent even though it is not in force. A case in point is section 55 of the Quebec Interpretation Act:
Whenever an act or any provision of an act comes into force at a date subsequent to its sanction, appointments to an employment or to an office thereunder may validly be made within the thirty days preceding the date of such coming into force, to take effect on such date, and the regulations contemplated therein may validly be made and published before such date. . . .
The federal Interpretation Act (s. 7) also states that some measures may be validly undertaken prior to commencement of the statute. . . .3
. . . no statute not yet in force could override clear terms of an already binding enactment.
2 On the application of statutes that have not received royal assent: R. v. Potter Distilleries (1982), 132 D.L.R. (3d) 190 (B.C.C.A.); Schneider v. The Queen, [1982] 2 S.C.R. 112. According to Richard Tremblay, a distinction should be drawn between the statute's enforceability (which occurs with enactment) and its mandatory effect (which occurs with its coming into force). With its birth the statute imposes itself upon the administration; this is what Tremblay refers to as "force exécutoire" or the enforceability of the statute. With respect to "force obligatoire", or mandatory effect, it starts when the law is applicable to citizens, that is to say, from its coming into force. Tremblay admits (see page 23) that this distinction, of Continental European origin, has yet to find expression in Canadian law. Richard Tremblay, L'entrée en vigueur des lois--Principes et techniques, Cowansville: Les Éditions Yvon Blais, 1997, 17-47.
3 [Note omitted.]
[18]Richard Tremblay, in L'entrée en vigueur des lois: Principes et techniques, Éditions Yvon Blais, 1997, at page 45, states:
[translation] Generally speaking, a statute cannot be fully effective on the date prescribed for its coming into force unless the authorities responsible for applying it first take action to ensure its enforceability. In theory, the actions taken by the public authority during this preparatory phase rest solely on the statute's enforceability. Writers who have regarded this as retroactivity are, in my opinion, confusing enforceability with mandatory effect.136 A statute creates rights and obligations for those subject to it by its coming into force. It follows that any action that does not create a right or obligation is allowed prior to the coming into force of the statute in which such action is prescribed. . . .
136 According to P.-A. Côté's model, . . . enforceability commences with the coming into force of the statute and ends with its repeal. This is the "period of observation" of the statute--that is, "the period during which the rules contained in the text must be observed by all who are subject to it", as opposed to the "period of application" of the statute, a conceptually broader concept, which may begin before its period of observation (the phenomenon of retroactivity) or extend beyond (the phenomenon of survival). The steps to apply the statute taken by the public authority prior to the coming into force of the statute fall outside the period of observation of the statute and consequently constitute a retroactive application of the statute.
[19]In the case at bar, the amendment to the Act should come into force on a day to be fixed by order of the Governor in Council, under section 340 of the Modernization Act. In the case that concerns us, applying this amendment prior to its coming into force would create a right for the applicant--the right to consider any day during which she resided with her partner, while he was a citizen and was employed outside of Canada with the public service of a province, as tantamount to a day spent in Canada.
[20]In regard to the retroactivity of legislation, once it is in force, Ruth Sullivan, who edited the third edition of Driedger on the Construction of Statutes (Toronto: Butterworths, 1994), states at page 550 of that volume:
The presumption against the retroactive application of legislation applies to all legislation, including beneficial legislation. Where the impact of legislation is purely beneficial, the presumption against retroactivity may be easy to rebut. However, considerations such as stability and certainty remain relevant even where the surprise is pleasant. Moreover, legislation that is beneficial to the public is not necessarily cost free. A responsible legislature will have given some thought to the range and extent of the benefits it wishes to confer. The courts cannot infer from mere silence that the legislature intended retroactive as well as prospective benefits.
and further, at page 551:
The immediate and general application of legislation is the normal state of affairs; it is only where the impact is arbitrary or unfairly prejudicial that limiting its application may be justified.
[21]The respondent, for his part, argues that since the word "spouse" is not defined in the Act, it is the Citizenship Policy Manual, used as an operational guide for the staff in the citizenship program, that should be followed. In this manual, it is explicitly stated, in subsection 1.7.1 of chapter CP5:
The Citizenship Act was amended in 1988 to allow the spouse of a Canadian citizen residing outside Canada with that person to count certain specific periods as residence in Canada. "Spouse" refers to a married person.
[22]It is trite law that such guidelines are simply administrative practices and have no force of law. In Huda (Re), [1999] F.C.J. No. 538 (T.D.) (QL), it was held; at paragraphs 13-14:
With respect to counsel for the applicants' suggestion that I must have regard to an additional 90-day grace period, this is what the Citizenship Policy Manual, July 1996 says:
CHAPTER 40: DATE TO DETERMINE RESIDENCE
Background:
A grace period of 90 days of absence within the three years is permitted for vacations or business trips.
First, this period is not referred to in the Act or Regulations; it is more in the nature of an administrative practice that a citizenship judge might follow at the time of an applicant's hearing. [Emphasis added.]
[23]More recently, Mr. Justice Rouleau, in Bhardwaj v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 170 (F.C.T.D.), held, at paragraph 24:
It is established that a visa officer must make his decision according to the law and he cannot be fettered in his discretion by receiving directives which do not have the force of law (Ho v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 12 (F.C.A.)). Section 1.36, c. IS-1 of the Immigration Manual is a policy. The evidence in this case shows that the visa officer did consider the job offered to the applicant, but found that 1) the fact that the Vishnu Hindu Society has been waiting for his services for the last six years clearly shows that this has just been done for his accommodation and 2) that the applicant did not have any directly related work experience and that he could not reasonably be expected to acquire within a reasonable time period the skills demanded for the proposed job. In light of these facts, I believe it was not unreasonable for the visa officer to refuse to give the applicant the ten (10) points usually awarded for arranged employment. [Emphasis added.]
[24]Indeed, these guidelines or directives serve only as an "operational guide" for the staff of the citizenship program.
[25]The respondent further contends that reliance should be placed on the definition of "spouse" (conjoint) in the Immigration Regulations, 1978 [SOR/78-172, s. 2(1) (as am. by SOR/85-225, s. 1)], which excludes common-law spouses or partners.
[26]However, neither the Immigration Act [R.S.C., 1985, c. I-2] nor the regulations thereunder are subject to the Modernization Act. It can be concluded, therefore, that Parliament did not consider it appropriate to amend the definition of "spouse" as it is understood in the Immigration Act, as opposed to the Citizenship Act. Consequently, it would be inappropriate to borrow this definition from it.
[27]Thus the real issue lies in determining what definition of "spouse" or "partner" a citizenship judge should adopt when the Act does not so specify. Should the judge follow the Citizenship Policy Manual or the amendment to the Act explicitly referring to the word in question, which is not in force?
[28]In L'entrée en vigueur des lois: principes et techniques, supra, Richard Tremblay writes, at page 95:
[translation] Indeed, the public authority and the courts cannot begin to apply the statute to citizens until it has come into force. On the other hand, these authorities sometimes are, for various reasons, tardy in applying the statute to citizens.
[29]It follows that the Judge, in not taking into account the Modernization Act, and in using his discretion to comply with the Citizenship Policy Manual, did not err in law.
[30]However, I would like to emphasize the importance of determining the date of coming into force of these amendments in order to eliminate, on the one hand, this legal confusion which affects the fate of potential Canadians, and, on the other hand, this statutory inconsistency.
2. Did the Judge err in fact in using a criterion alien to the Act to assess the applicant's knowledge of Canadian reality?
[31]The Court has had the benefit of reviewing the questionnaire used by the Judge in assessing the applicant's knowledge.
[32]The applicant contends that the Judge used the 50% average rule as the applicable test in assessing her knowledge of Canada and that this criterion is alien to the Act and the Regulations.
[33]However, the questionnaire used by the Judge does not disclose the use of such a test. It simply states, alongside questions put to the applicant, her answers. Moreover, on the "[translation] Notice to Minister of Citizenship Judge's Decision--Section 5" (page 26 of the applicant's record), in the section entitled "reasons", the Judge has written: "5-1-E- Insufficient knowledge of Canada. [f]ailed 11 of 20 questions". There is no reference to the fact that at least 10 of these 20 replies had to be correct.
[34]The applicant also submits that the Judge further erred in asking her questions about the four topics identified in paragraph 15(c) of the Regulations and in drawing negative conclusions concerning her knowledge of Canada in considering her answers to the four topics.
[35]Paragraph 15(c) of the Regulations requires that an applicant have an adequate knowledge of one of the four topics mentioned in subparagraphs (i) to (iv), which the judge must choose at random in the questions prepared by the Minister.
[36]The Oxford English Dictionary (2nd ed.) gives the following definition of:
choose: . . . To take by preference out of all that are available; to select; to take as that which one prefers. . . .
choice: The act of choosing; preferential determination between things proposed. [Underlining added.]
[37]It is obvious, from a reading of this paragraph, that this is not what the Judge did in this particular case.
[38]Although the wording of paragraph 15(c) of the Regulations is not overly clear, it does seem clear that Parliament provided that the Judge should choose one or the other of the four topics, at random.
[39]No doubt he might have been criticized as having an excessively narrow approach if he had asked his questions on a single topic, but that is what the Regulations specify. It is possible that the Judge decided to ask some questions outside the topic selected at random, to enable the applicant to say more about her knowledge. However, that is not what the Act and the Regulations require him to do.
[40]Furthermore, in his decision the Judge is silent as to the sequence of the questions asked and the topic chosen at random. He limits himself to reproducing the language of the Regulations.
[41]This is an error of law that would warrant allowing this appeal if the attribution criteria in subsection 5(1) of the Act were not cumulative, which is not the case.
[42]Indeed, the language of the Act is clear: "The Minister shall grant citizenship to any person who [paragraphs (a), (b), (c), (d), (e)] and [paragraph (f)]" [emphasis added], the lettered paragraphs specifying cumulatively the criteria for granting citizenship. In the case at bar, the criteria not satisfied by the applicant were those of time spent in Canada prior to the application, i.e. paragraph 5(1)(c) of the Act, and adequate knowledge of Canada, i.e. paragraph 5(1)(e) of the Act.
[43]I wish to note the excellent contributions of both counsel in a difficult case in which their comments on both sides were particularly helpful.
[44]In closing, I would add that I am sorry I am unable to concur with the applicant's request. However, because she has been married since March 25, 2000, she may reapply in barely four months. If applicable, I suggest that the respondent assign some priority to the processing of this case.
ORDER
ACCORDINGLY, THE COURT ORDERS:
That the appeal be dismissed.