T-6037-81
In re the Citizenship Act and in re Israel Jacob
Aaron (Appellant)
Trial Division, Addy J.—Vancouver, February 9,
1982.
Citizenship — Jurisdiction — Appeal from decision of
Citizenship Judge not to recommend to the Governor General
in Council pursuant to s. 5(4) of the Citizenship Act that
discretion be exercised in favour of granting the applicant
citizenship on grounds of special and unusual hardship
Whether the Court has jurisdiction to hear such an appeal —
Appeal dismissed — Citizenship Act, S.C. 1974-75-76, c. 108,
ss. 5(1)(b),(3),(4), 13(5) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 2 — Federal Court Rule 912.
In re Akins and in re the Citizenship Act [1978] 1 F.C.
757, applied. In re the Citizenship Act and in re Boutros
[1980] 1 F.C. 624, applied.
APPEAL.
APPEARANCES:
Israel Jacob Aaron for himself; no one contra.
The following are the reasons for order ren
dered in English by
ADDY J.: By reason of the urgency of this
matter, the appeal was, at the express request of
the appellant, heard on short notice and without
the presence of the amicus curiae who was, by
reason of a previous commitment, unable to
attend.
The applicant does not meet the requirements of
permanent residence in Canada provided for in
paragraph 5(1)(b) of the Citizenship Act, S.C.
1974-75-76, c. 108. The appeal is based on the
allegation that it was on an improper interpreta
tion of subsection 5(4) of the Act that the Citizen
ship Judge came to the conclusion that he would
not recommend to the Governor General in Coun
cil pursuant to the above-mentioned subsection,
that discretion be exercised in favour of granting
the applicant citizenship on grounds of special and
unusual hardship.
For reasons expressed at some length in the case
of In re Akins and in re the Citizenship Act [1978]
1 F.C. 757, and more recently in the case In re the
Citizenship Act and in re Boutros [1980] 1 F.C.
624, I dismiss the present appeal for want of
jurisdiction without in any way considering the
case on the merits.
As to the existence of right of appeal, the same
principles apply to recommendations made under
subsection 5(3) as to those under subsection 5(4).
It is unfortunate that the Boutros case was not
appealed, notwithstanding my strong recommen
dation to that effect, for the reasons which I
expressed at pages 630 and 631 of the above-men
tioned report of that decision. The same consider
ations regarding desirability of an appeal apply to
the present case.
For further clarification, however, I would like
to emphasize the following:
1. An appeal before this Court is prosecuted by
means of a trial de novo (Federal Court Rule 912).
In such cases the appellate court must re-hear the
case as if it were hearing the matter for the first
time and decide accordingly. It is therefore
improper, in my view, in such cases for this tri
bunal to refer the matter back to the Citizenship
Judge for a decision based on any findings as to
the law which should be applied.
2. Citizenship Court Judges, unlike Superior Court
or County Court or Provincial Court Judges, are
more properly characterized as an integral part of
the administrative process than as part of the
judicial branch of government, although their
duties must be carried out in a judicial or quasi-
judicial manner. They, in a very significant way
and especially when exercising powers under sub
sections 5(3) and 5(4), are more likely to be
considered an "other tribunal" as contemplated in
the definition of "federal board, commission or
other tribunal" in section 2 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, than a court
of law in the generally accepted sense of the word.
3. In our system of government the function of
courts of law is to administer justice by the issuing
of executive or declaratory judgments and orders
and not to make administrative recommendations.
Failing a clear and unequivocal obligation or
direction in a statute to do so, I refuse to conclude
that Parliament would require Superior Court
Judges to become part of the administrative pro
cess of government and to recommend either to the
Minister under subsection 5(3) or to the Governor
General in Council under subsection 5(4) that
citizenship be granted. This would be a purely
administrative act and the Minister or the Gover
nor General in Council would be free to accept or
reject such recommendation. The enactment
granting the right to appeal, that is subsection
13(5), does not contain any such clear obligation
or direction. Even if it did, having regard to the
principle of separation of powers universally recog
nized by our system of government and by our
courts since the Act of Settlement, 1700, 12 & 13
Will. 3, c. 2, I would entertain serious doubts as to
its validity from a constitutional standpoint.
ORDER
The appeal is dismissed on the grounds that the
matter cannot be appealed before the Trial Divi
sion of the Federal Court, and that this Court
therefore does not have jurisdiction to entertain
the appeal.
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.