Georges Blaha (Appellant)
v.
Minister of Citizenship & Immigration (amicus
curiae)
Citizenship Appeal Court, Pratte J.—Quebec,
November 22; Ottawa, December 9, 1971.
Citizenship—"Residence", meaning—Applicant a student
at U.S. university—Canadian Citizenship Act, R.S.C. 1970,
c. C-19, s. 10(1)(b) and (c).
Appellant, a Czech refugee, entered Canada illegally in
July 1963 and became a "landed" immigrant on October 29,
1965. He lived in Canada while attending Laval University
until October 13, 1966, when he became a student at Ohio
State University, returning to Canada only during the
summer months until after his graduation in March 1971,
when he returned to Canada permanently. On August 20,
1970, he applied for Canadian citizenship.
Held, affirming the Citizenship Court, his application
must be refused. He had not met the residence requirements
of s. 10(1)(b) and (c) of the Canadian Citizenship Act. The
word "residence" as used therein requires physical pres
ence (at least usually) on Canadian territory.
APPEAL from Citizenship Court.
Robert Lesage for appellant.
Claude Ruelland, amicus curiae.
PRATTE J.—Appellant applied for Canadian
citizenship. In order that his application be
granted he had, under s. 10(1) of the Canadian
Citizenship Act (R.S.C. 1952, c. 33, as amend
ed, now R.S.C. 1970, c. C-19), to establish to
the Court's satisfaction that he had resided in
Canada for the time required by law. On May
25, 1971, the Court gave a decision on this
point that was unfavourable to appellant. This is
the decision which appellant is now challenging.
Appellant is a Czech refugee who entered
Canada illegally on July 7, 1963. His position
was regularized on October 29, 1965, the date
of his "landing" as an immigrant. A few days
later, on November 5, 1965, he filed with the
Registry of the Court in Quebec a statement of
his intention to become a Canadian citizen, and
finally, on August 20, 1970, he applied for
Canadian citizenship.
Appellant remained in Canada from July 7,
1963 to October 13, 1966. In September 1963,
he was registered as a full-time student in the
Faculty of Forestry and Geodesy at Laval Uni
versity, and received his B.A. in Geodesic
Science in June 1965. He registered in the
graduate school of Laval University immediate
ly afterwards, and was awarded the degree of
Master of Science (Photographic Surveying) on
June 8, 1968. In 1966 appellant, who had
earned a National Research Council scholar
ship, decided on the advice of his professors to
go immediately to the United States to continue
his higher education, on the understanding that
he would complete his work for the Master's
degree in his summer holidays. He accordingly
left Quebec on October 13, 1966, to study at
Ohio State University which, in March 1971,
conferred on him the doctorate he desired.
Appellant returned to Canada permanently on
March 23, 1971. While he was studying in the
United States he returned annually to Canada.
He worked at Laval University in Quebec in
1967, from the beginning of June to the end of
September; and in each of the following years
he returned to spend at least two months in
Canada, living with his brother in Montreal
most of the time.
It is established that appellant never intended
to leave Canada for good; though he went to the
United States, this was only for a time, in order
to do further study in an area which was then
practically unexplored here. He at all times
thought he was maintaining his domicile in the
Province of Quebec. Throughout this period he
had a bank account in Quebec, held a driver's
permit issued by the Department of Transport
of the Province of Quebec, and every time he
had to give his permanent address while he was
in the United States he stated either Laval
University or that of his brother in Montreal,
with whom, moreover, he had left some person
al effects. We may add that his sincerity cannot
be questioned when he says that he would not
have left Canada for the United States had he
known that his time abroad would result in
postponing the date when he would be able to
acquire Canadian citizenship.
Paragraph (1)(b) and subparagraph (1)(c)(i) of
section 10 of the Canadian Citizenship Act read
as follows:
10. (1) The Minister may, in his discretion, grant a cer
tificate of citizenship to any person who is not a Canadian
citizen and who makes application for that purpose and
satisfies the Court that
(b) he has resided in Canada for at least twelve of the
eighteen months immediately preceding the date of his
application;
(c) the applicant has
(i) been lawfully admitted to Canada for permanent
residence and has, since such admission, resided in
Canada for at least five of the eight years immediately
preceding the date of application, but for the purpose
of this subparagraph, each full year of residence in
Canada by the applicant prior to his lawful admission to
Canada for permanent residence is deemed to be one
half-year of residence in Canada within the eight-year
period referred to in this subparagraph.
The only problem raised by this appeal is
whether, in respect of the facts I have stated,
the Court was right in deciding that appellant's
application could not be granted because he had
not resided in Canada for twelve of the eighteen
months, and at least five of the eight years,
immediately preceding the date of his applica
tion, as required by the aforementioned legisla
tive provisions.
Appellant's counsel, whose views on this
point were concurred in by the counsel appoint
ed to act as amicus curiae in the matter, alleged
first that the Court had erred in deciding that
appellant had not maintained his residence in
Canada during the time he spent studying in the
United States. He then submitted that the Court
had erred in assuming that, in order to acquire
citizenship, appellant had to meet the require
ments of the Act as it stood in 1970, and still
stands at the present time; in his opinion it was
sufficient for appellant to show that he had
satisfied the requirements of s. 10 as it stood
before July 7, 1967. Finally, counsel for the
appellant contended that the Court had erred in
failing to take into consideration the fact that,
under s. 10(8)(b) of the current Act, appellant
did not have to meet the requirements of sub-
paragraph (1)(c)(i) of this same section.
I shall deal with each of these submissions in
the order that I have just employed.
The Court held that appellant had not resided
in Canada during the period, from 1966 to
1970, when he was in the United States. Clearly
this decision can only be reversed if appellant,
as contended by his counsel and the amicus
curiae, maintained his residence in Canada
during the time that he was in the United States.
The Canadian Citizenship Act does not
define the terms "reside" or "residence". It
may be noted, however, that it defines the
expression "place of domicile" in the following
manner:
2. "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;
As the Act does not define the words "reside"
and "residence", we must arrive at their mean
ing 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".
These two words, "reside" and "residence",
do not have a definite meaning in law; their
meaning varies with the context in which they
are used. Since I am to decide the meaning of
these terms in the Canadian Citizenship Act, I
am unable, therefore, to rely on decisions in
which the courts have had to specify the mean
ing of those same words in other statutes, such
as a tax statute (Thomson v. M.N.R. [1946]
S.C.R. 209), an electoral statute (Re An Elec
tion in St. John's South, Newfoundland (1960)
22 D.L.R. (2d) 288)), or a procedural statute
(Ethier v. Nault [1952] Que. Q.B. 216).
In my opinion a person is resident in Canada
within the meaning of the Canadian Citizenship
Act only if he is physically 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.
Further, this interpretation is confirmed by
the comparison which can be made between the
English and French versions of subparagraph
(1)(c)(i) of section 10. The expression "each full
year of residence in Canada", which appears in
the English text of this subparagraph, has been
translated in the French text by the words "cha-
que année entière passée au Canada".
If this limited meaning is to be given to the
word "reside", as I think it has to be, the Court
was clearly right in holding that appellant did
not reside in Canada for five of the eight years
or for twelve of the eighteen months immediate
ly preceding the date of his application.
However, it must now be considered wheth
er, as the Court assumed, appellant, in order to
be entitled to citizenship, was obliged to meet
the requirements of paragraph (1)(b) and sub-
paragraph (1)(c)(i) of section 10 as these provi
sions have stood since 1967. Counsel for the
appellant has indeed contended that his client,
who arrived in Canada in 1963, became a "land-
ed" immigrant on October 29, 1965, and filed a
statement on November 5, 1965, of his inten
tion to become a Canadian citizen, was entitled
to acquire Canadian citizenship as soon as he
satisfied the requirements of the statute as it
stood at that time. At that period, and up to July
7, 1967, the French text of paragraph (1)(b) and
subparagraph (1)(c)(i) of section 10 read as
follows:
10. (1) Le Ministre peut, à sa discrétion, accorder un
certificat de citoyenneté à toute personne qui n'est pas un
citoyen canadien, qui en fait la demande et démontre à la
satisfaction du tribunal,
b) qu'elle a résidé au Canada durant une période d'au
moins une année précédant la date de sa demande;
c) que le demandeur ou la demanderesse
(i) a acquis un domicile canadien;
According to his counsel's argument appel
lant, before s. 10 of the Canadian Citizenship
Act was amended on July 7, 1967, was entitled
to become a Canadian citizen as soon as he met
the requirements of the law applicable at the
time. Appealing to the principle by which a
statute is not to be interpreted so as to give it
retroactive effect, counsel for the appellant
asserted that the amendments made to the
wording of s. 10 on July 7, 1967 could not
affect the rights of his client, who would thus
continue to be able to acquire Canadian citizen
ship on the conditions specified in the statute
before July 7, 1967. The prior statute, he con
tended, did not require that the period of twelve
months' residence immediately precede the
application for citizenship; nor did it require
residence of five years. It would follow from
this that the decision of the Court should be
reversed, because, at the time he applied for
Canadian citizenship, appellant had met the
requirements of the statute applicable to him,
i.e. the Canadian Citizenship Act as it stood
before 1967.
I do not feel it necessary, in deciding on this
appeal, to dwell at length on the argument I
have just set out. Indeed, even if, as his counsel
has contended, appellant was entitled to invoke
the Canadian Citizenship Act as it stood before
1967, it would not follow that the Court's deci
sion must be reversed, because appellant did
not meet the requirements of this Act at the
time he applied for Canadian citizenship. It is
quite true that from 1953 to 1967 the French
version of paragraph (1)(b) of section 10
required only, as counsel for the appellant
indicated, that a person applying for Canadian
citizenship establish:
b) qu'elle a résidé au Canada pendant une période d'au
moins une année précédant la date de sa demande.
The meaning of this provision was, however,
defined • by the English text, which read as
follows:
(b) he has resided in Canada for a period of at least one
year immediately preceding the date of his, application.
It must be concluded, therefore, that before
1967 a foreigner could only acquire Canadian
citizenship on condition that he had resided in
Canada during the twelve months immediately
preceding the date of his application. As appel
lant has not fulfilled this condition, there is no
need to decide whether he can invoke the Act
prior to 1967.
For the same reason, it is not necessary to
express an opinion on the merits of the last
ground put forward in support of the appeal.
Counsel for the appellant has taken the Court to
task for having failed to take into consideration
the fact that appellant could invoke paragraph
(8)(b) of section 10. This paragraph provides
merely that subparagraph (1)(c)(i)—which
requires five years' residence—does not apply
to certain classes of persons. It would serve no
purpose to decide whether appellant belongs to
these privileged classes since, in any event, his
application for citizenship cannot be granted for
the reason that he had not resided in Canada for
twelve of the eighteen months preceding the
date of his application.
For these reasons the appeal is 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.