A-258-77
Norbert Vincenti (Applicant)
v.
Minister of Manpower and Immigration and
Gaston Perron (Respondents)
and
Deputy Attorney General of Canada (Mis - en-
cause)
Court of Appeal, Jackett C.J., Pratte and Le Dain
JJ.—Montreal, May 31; Ottawa, September 6,
1977.
Judicial review — Immigration — Establishment of
Canadian domicile Trips abroad during five-year period —
Extended period abroad after five-year period — Special
inquiry on return — Ordered deported — Immigration Act,
R.S.C. 1970, c. I-2, ss. 2, 3(2), 4(1),(3) and 18(1)(e)(vi),(2) —
Federal Court Act, s. 28.
The applicant, a citizen of France, was admitted to Canada
as a landed immigrant in October, 1967, and during the next
five years made three trips abroad, returning from the last one
in April, 1972. In order to further his wife's education, the
applicant and his family returned to France in November,
1972. On his return to Canada in 1976, the applicant presented
the immigration officer with a new French passport that had
not been stamped with an immigration visa, as the passport
originally stamped with the visa had expired. The immigration
officer treated him as a non-immigrant. A Special Inquiry
Officer, after a hearing, concluded that the applicant had not
met the requirements to establish Canadian domicile and
ordered him deported. The applicant applied for judicial
review.
Held, the application is allowed. The applicant took up
residence in Canada in October 1967 and left Canada with his
family at the end of 1972. During that time, he would seem to
have had a place of domicile in Canada unless his three trips
out of the country, or any of them, broke the continuity of his
relationship with Canada that made it his place of "domicile".
The Special Inquiry Officer did not address his mind to the
question whether the trips in question were mere temporary
absences from the applicant's home in Canada or whether the
applicant had, while on such trips, ceased to reside in Canada.
The Special Inquiry Officer erred in law in his finding on the
question because he did not address his mind to the right
question and the deportation order must be set aside.
APPLICATION for judicial review.
COUNSEL:
J. G. Maranda for applicant.
P. Gariépy for respondents and mis -en-cause.
SOLICITORS:
J. G. Maranda, Montreal, for applicant.
Deputy Attorney General of Canada for
respondents and mis -en-cause.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application to
set aside a deportation order made against the
applicant.
The section 28 application was heard at Mont-
real on May 31, 1977, and judgment was reserved
with leave to the parties to file written argument
within specified times. Arguments on behalf of the
applicant and the respondent and mis -en-cause
have been filed and I have had an opportunity to
consider them. The time allowed to the applicant
for filing a reply has expired.
The deportation order was made following a
special inquiry held as a result of a report made
under section 18 of the Immigration Act, the
relevant part of which reads as follows:
[TRANSLATION] Under subparagraph 18(1)(e)(vi) of the
Immigration Act, I must report that
VINCENT!, Norbert
is a person, other than a Canadian citizen or a person with
Canadian domicile, who entered Canada as a non-immigrant
and remains therein after ceasing to be in the particular class in
which he was admitted as a non-immigrant, in that
Mr. Vincenti arrived in Canada on September 24, 1976 at
Mirabel, where he was admitted as a visitor, 7(1)(c), until
November 8, 1976. On October 29, 1976, during an inter
view conducted at the Canada Immigration Centre in Lon-
gueuil, Mr. Vincenti admitted that he had been working as a
car salesman for Renault Centre-Ville since about a week
after he arrived in Canada without the written authorization
of an immigration officer. Mr. Vincenti therefore ceased to
belong to the particular class in which he was admitted as a
non-immigrant.
The deportation order, which was made on April
21, 1977, reads, in part:
[TRANSLATION] (1) you are not a Canadian citizen;
(2) you are not a person having acquired Canadian domicile;
(3) you are a person described in subparagraph 18(1)(e)(vi) of
the Immigration Act, in that you entered Canada as a non-
immigrant and remain there after ceasing to be in the particu
lar class in which you were admitted as a non-immigrant;
(4) you are subject to deportation under subsection 18(2) of
the Immigration Act.
I hereby order that you be detained and deported.
The only serious question as to the validity of
the deportation order that arose out of the oral
argument, and the question that gave rise to the
Court's decision to reserve judgment, was whether
the Special Inquiry Officer had erred in law in
finding that the applicant was a "person, other
than ... a person with Canadian domicile", which
finding was a condition precedent to the validity of
the deportation order, which was based on section
18(1)(e)(vi) of the Immigration Act, which reads:
18. (1) Where he has knowledge thereof, the clerk or secre
tary of a municipality in Canada in which a person hereinafter
described resides or may be, an immigration officer or a
constable or other peace officer shall send a written report to
the Director, with full particulars, concerning
(e) any person, other than a Canadian citizen or a person
with Canadian domicile, who
(vi) entered Canada as a non-immigrant and remains
therein after ceasing to be a non-immigrant or to be in the
particular class in which he was admitted as a
non-immigrant,
and section 18(2), which reads:
(2) Every person who is found upon an inquiry duly held by
a Special Inquiry Officer to be a person described in subsection
(1) is subject to deportation.
It is common ground that, if the Special Inquiry
Officer erred in law in finding that the applicant
was not a person who had acquired Canadian
domicile, the deportation order must be set aside'
and that, if such finding was not the result of an
error in law, the section 28 application must be
dismissed.
Before examining what was brought out by the
inquiry, it is expedient to look at the relevant
provisions of the Act.
A preliminary comment based on a reading of
the Act is that, as this was a proceeding under
section 18 to deport someone who was in Canada,
the burden of proof imposed by section 26(4) on a
' The formal finding was that the applicant was not a person
"ayant acquis" Canadian domicile rather than a finding that
he was not a person "ayant" Canadian domicile.
"person seeking to come into Canada" has no
application; and it follows that, if what is found in
the inquiry proceedings does not provide an ade
quate basis to support the deportation order, the
deportation order is bad and must be set aside.
Turning to the provisions relating to the mean
ing of "Canadian domicile" in section 18(1)(e), in
so far as relevant, they read as follows:
2. In this Act
"Canadian domicile" means Canadian domicile acquired and
held in accordance with section 4;
"immigrant" means a person who seeks admission to Canada
for pc, manent residence;
"landing" means the lawful admission of an immigrant to
Canada for permanent residence;
"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;
3. (2) Subject to subsection (3), a person who is not a
Canadian citizen but has acquired and has not lost Canadian
domicile shall be allowed to come into Canada.
4. (1) Canadian domicile is acquired for the purposes of this
Act by a person having his place of domicile for at least five
years in Canada after having been landed in Canada.
(3) Canadian domicile is lost by a person voluntarily resid
ing out of Canada with the intention of making his permanent
home out of Canada and not for a mere special or temporary
purpose, but in no case shall residence out of Canada for any of
the following objects cause loss of Canadian domicile, namely,
(a) as a representative or employee of a firm, business,
company or organization, religious or otherwise, established
in Canada;
(b) in the public service of Canada or of a province thereof;
or
(c) as the spouse or the child for the purpose of being with a
spouse or parent residing out of Canada for any of the
objects or causes specified in paragraph (a) or (b).
The facts revealed by the Special Inquiry that
do not seem to be in dispute are:
(1) the applicant is a citizen of France;
-(2) the applicant was admitted to Canada as an
"immigrant" on October 19, 1967—i.e., he was
on that day "landed" in Canada;
(3) in 1968 or 1969, in 1970 and 1971, the
applicant was out of Canada for vacation, the
illness or death of a grandfather and the illness
or death of his father-in-law, respectively;
(4) having returned from the last of these three
trips in April, 1972, the applicant and his family
went back to France in November, 1972,
according to him, for the further education of
his wife;
(5) on September 24, 1976, the applicant
returned to Canada and his family returned a
month later.
It also seems to be clear that, during the period of
his stay in France, from 1972 to 1976, the appli
cant had to obtain a new French passport as a
result of which he gave up his original passport
with the Canadian immigrant visa in it and
received a new passport that did not show his
immigrant visa; and that, as a result, the immigra
tion officer to whom he reported on his return to
Canada in 1976 treated him as a non-immigrant
and so showed him by an appropriate stamp in his
new passport.
For present purposes, with one exception, I do
not think it is necessary to refer to the other
evidence given at the Special Inquiry except as it is
mentioned in the summing up of the Special Inqui
ry Officer, which reads as follows:
[TRANSLATION] Mr. Vincenti, after reviewing your testimony
of April 12 and that of this morning, and considering the
testimony of Mr. Bourque on the circumstances in which you
went to meet him, and also concerning your status in Canada, I
must recognize, it is a fact that you were admitted to Canada
as an immigrant in October 1967. On the other hand, you
mentioned on April 12 that you left Canada at the end of 1972,
whereas it came out this morning that you left in 1970, you
came back, you left again in 1971, you came back some time in
1972, and returned to France again that year and did not come
back until September 1976. I must recognize that although you
were admitted to Canada as an immigrant, the period of time
between your landing as an immigrant in 1967 and your
departure from Canada is not sufficient for you to have
acquired Canadian domicile, and that when you left Canada
having left your job in Canada, having no bank account in
Canada, having left the few personal effects you had with your
sister, contradicting yourself in your testimony, saying at times
that you left them with her for her to keep in storage, and at
other times that you gave them to her—moreover, I must
recognize that contrary to the submissions of your brilliant
counsel, in your case section 3(2) of the Act did not apply when
you returned to Canada, and that under section 4(3), having
resided voluntarily outside Canada you lost your immigrant
status in Canada, and that when you returned to Canada in
September 1976, having been admitted as a visitor, not correct
ing the officer who admitted you when you arrived on this
point, and having begun to work less than a week after your
arrival in Canada, you thereby ceased to belong to the class of
non-immigrant in which you were admitted to Canada. Conse
quently, not under section 27(2) as your counsel pointed out, I
must render the following decision.
The exception is that the applicant testified, in
effect, that each time that he left Canada, after his
admission as an immigrant, he left for some tem
porary purpose and that he never had the intention
of making his permanent home outside Canada.
There would seem to be no doubt that, in so far
as the general rules of private international law are
concerned, the applicant became domiciled in
Canada when he took up permanent residence
after he was "landed"—i.e., was admitted lawfully
"for permanent residence". Compare Osvath-Lat-
koczy v. Osvath-Latkoczy 2 . For discussions of the
general principles involved with reference to "dom-
icile" in private international law, see also Taylor
v. Taylor 3 , Stephens v. Falchi 4 and Trottier v.
Rajotte 5 . While, generally speaking, the concept
of domicile in private international law and "place
of domicile" as used in section 4(1) of the Immi
gration Act are much the same, there would seem
to be important differences, e.g.:
(a) under the Immigration Act, a wife's "place
of domicile" is not necessarily that of her hus
band and that of a child is not necessarily that
of his parents, and
(b) there would not seem to be any rule that, on
abandonment of place of domicile of choice
without acquiring another, the place of domicile
of origin is re-acquired.
2 [1959] S.C.R. 751.
[1930] S.C.R. 26.
° [1938] S.C.R. 354.
5 [1940] S.C.R. 203.
In other words, there would seem to be no reason
for referring to the jurisprudence concerning the
private international law concept of domicile for
present purposes, although superficially, on the
facts of the present case, the result would appear
to be the same.
For present purposes, it would seem that, when
determining whether or not a person has Canadian
domicile for the purposes of the Immigration Act,
there are two questions that may have to be con
sidered, viz:
(a) Did the applicant acquire Canadian domi
cile by having in Canada, for at least five years
after he was landed in Canada, his place of
domicile, i.e.,
(i) the place in which he had his home,
(ii) the place in which he resided, or
(iii) the place to which he returns as his
permanent abode? 6
(b) If the answer to that question is in the
affirmative, did the applicant lose Canadian
domicile by voluntarily "residing" out of
Canada "with the intention of making his per
manent home out of Canada and not for a mere
special or temporary purpose"?'
In his summary of the facts, the Special Inquiry
Officer concludes that the period of time from the
applicant's admission as immigrant to his depar
ture from Canada was not sufficient to acquire
Canadian domicile and that, by virtue of section
4(3), having resided voluntarily outside Canada,
he had lost his status as an immigrant. He appears
to have based his deportation order on the first of
these two conclusions. (The second conclusion
would seem to be a non-sequitur.)
Having regard to the evidence, as it seems to
me, the conclusion that the applicant did not
acquire Canadian domicile was reached by. the
Special Inquiry Officer without addressing himself
to the proper questions. It would seem clear that
the applicant took up residence in Canada in Octo-
ber 1967 and left Canada with his family at the
end of 1972. During that time, he would seem to
have had a place of domicile in Canada unless his
three trips out of the country, or any of them,
6 Compare section 4(1) and the definition of "place of domi
cile" in section 2.
7 Compare section 4(3).
broke the continuity of his relationship with
Canada that made it his "place of domicile" 8 . I
doubt whether, on the evidence that was before the
Special Inquiry Officer, he could have so found. In
any event, he did not address his mind to the
question whether the trips in question were mere
temporary absences from the applicant's home in
Canada or whether the applicant had, while on
such trips, ceased to reside in Canada. In my view,
the Special Inquiry Officer erred in law in his
finding on this question because he did not address
his mind to the right question and the deportation
order must, therefore, be set aside'.
In coming to this conclusion, I am expressing no
opinion as to whether the applicant had acquired
Canadian domicile and, if he had acquired
Canadian domicile, whether he had lost it. I doubt
whether there is sufficient evidence on the record
that was made before the Special Inquiry Officer
to reach a conclusion against the applicant on
either question and, as already indicated, this is
not a case in which the onus of proof was on the
applicant. In other words, the evidence brought out
on the Special Inquiry must be such as to support
the deportation order.
In my view, for the above reasons the deporta
tion order made against the applicant should be set
aside.
i * *
PRATTE J.: I agree.
*
LE DAIN J.: I agree.
Compare, in respect of residence, which is one of the
possible relationships contemplated by the section 2 definition
of "place of domicile", Thomson v. M.N.R. [1946] S.C.R. 209,
Beament v. M.N.R. [1952] 2 S.C.R. 486, and M.N.R. v.
Stickel [1975] 2 S.C.R. 233, at 234-5.
9 As it seems to me, he should have asked himself whether,
on the balance of probability, there was evidence which showed
that, notwithstanding the applicant's protestations to the con
trary, the applicant had, within the five-year period, ceased to
have his home or residence in Canada.
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.