Federal Court Decisions

Date: 20010228

Docket: T-1068-00

Citation: 2001 FCT 131

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Appellant

- and -

DOROTA MARIA OPOKA,

Respondent

REASONS FOR JUDGMENT

Muldoon, J. (Orally)

[1]      This is a time which many judges dread because where there is a contestation between two sides, and it is clear that they both cannot be victorious; one has to win and the other has to lose. So it is in this case: one side has to win and the other has to lose.

[2]      This is a case which, in this judge's opinion, was extremely well argued and so that adds a bit to the sadness of the occasion because one counsel has to win and the other has to lose, and so it is not a joyous occasion, but it has to be dealt with. This appeal came on for hearing in Vancouver, British Columbia on February 1, 2001.

[3]      Not to spin it out, or to spin out the anxiety more than necessary, the court has concluded that the application has to be allowed.

[4]      Now, there is no joy in that, as noted, but looking, as we must, at the statute, and there is a little citizenship lesson in this case for those who want to listen.

[5]      Ms. Peche: My Lord, I just want to clarify that this is the Minister's appeal.

The Court: Yes.

Ms. Peche: Okay, so it is not the minister's appeal which is dismissed, is that what...

The Court: Oh, yes.

Ms. Peche: Okay, thank you.

The Court: No, so sorry. Yes. The judge is confused, you see. It is the minister's appeal and the minister's appeal is going to succeed.

[6]      Sorry, that's - I do apologize to you if I have created some confusion and anxiety. The law states:

The Minister shall grant citizenship to any person who...

and then:

... makes application, is 18 years of age or over, has lawfully been admitted to Canada for permanent residence, has not ceased since admission to be a permanent resident pursuant to Section 24 of the Immigration Act and has, within the four years immediately preceding his date of application, accumulated at least three years of residence in Canada calculated in the following manner: ...

And then it speaks of this:

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 day of residence and for every day during which the person was resident in Canada after his lawful admission for permanent residence, the person shall be deemed to have accumulated one day of residence.

[7]      Now, the only way in which a person can accumulate days of residence that way, is by being present during those days. It is not possible, for example, in the matter of one-half day of residence, to be present one-half of one day and absent the rest of that day and then present again the next half of the next day, the first half, and then absent for the second half. One cannot do that.

[8]      And "presence" has been indicated in many, many cases. At least "residence" bespeaks "presence" not absence. If one is resident in a place, one is not absent from that place. One is resident in that place, and that is the way Parliament has expressed this" "resident in Canada".

[9]      Now, with sufficient respect to judges of a different opinion, one understands that there is no appeal from this decision - it is unfortunate - and that is why no other citizenship decision by a judge of the Trial Division of the Federal Court is binding on this court. None is binding. They are all individual decisions and that is the flaw, and that should be brought home to Parliament.

[10]      Now, judges are not free to write to Parliament, judges speak only through their reasons, but there are those in this room who may be free to get the attention of Parliament, and it would be a good thing to have some concerted effort to make this a more workable law. It is not a workable law when there is no first instance appeal, because judges, who are only human beings, tend to become undisciplined and they go and shoot off in all directions.

[11]      You might accuse this judge of doing that, but what this judge is telling you is that this judge is trying to do is to follow the law as Parliament wrote it.

[12]      Parliament wrote what has just been read and bespeaks presence in Canada. It does not speak of being absent for three hundred days, or three hundred and some days, and not being present during the four years preceding the application. It is a thing which does not concern the judge, it does not concern the applicant - well, of course it does, but it is not the responsibility of the applicant, nor of the judge. If the judge is going to be true to his vocation, one must understand that in this country Parliament makes the law. It is the rule of the law, and that is in the Constitution. It is not the rule of judges, it is not the rule of the whims of judges, it is not the rule of the interpretation of the law where it is not found in the text, it is the law, as Parliament has laid it down. That is the mark of a Parliamentary democracy. Parliament makes the law, judges do not.

[13]      So when someone says, "Ah, well, just bend it a little bit", "Ah, well, it does not matter", or "Do not deprive this poor woman of her citizenship" that rolls off me like water off a duck, because I am not depriving "this poor woman" of her citizenship: the law, as enacted by Parliament, will deprive her of citizenship, not this judge. And this judge, you might know, would not for the world deprive her of anything if he could avoid it. But there does not seem to be a way of avoiding it and being true to the oath which was taken in order to exercise the office of judge.

[14]      And so there is no joy in this. There is sadness. There is sadness for the judiciary in this country which seems to think - and perhaps some people say it is a result of the Charter. When you start invalidating laws, you think you can do anything you like. Well, this judge may be old-fashioned but he does not think he can do anything he likes, he thinks he has to obey the law as Parliament wrote it.

[15]      And of course, Parliament wrote the law but not for finality in this case. It is not etched in everlasting stone: another application can be made. This is not depriving the applicant of citizenship forever. I agree with Justice Reed's saying that perhaps we should not be saying that you will be a good citizen, but you know, you can look at some people and see they are dedicated, they are well-educated. And that seems to be this applicant. But that is not the test. "Concentrating one's mode of living" are words not found in the Citizenship Act. One cannot see them there. If that is what Parliament wanted, Parliament was absolutely free to enact it. Several of the phrases expressed in the Papadogiorkakis decision were never enacted by Parliament - never emplaced in the Citizenship Act. There is no fetter of the power of Parliament when it comes to matters wholly within Parliament's jurisdiction. The only fetter would be the Charter of Rights.

[16]      But in this instance, there is no way in which this judge could recommend that citizenship be conferred in these circumstances, without going squarely against the words enacted by Parliament. It may be that Parliament thinks, "Oh, well, on a given day why don't you go against them?" Well, because on a given day there is no authority for any judge to go against them. There is no reason that I am mightier than Parliament, or that I am smarter than Parliament, but more to the point, I have not the power, the official power to do that. I have to obey the law as enacted by Parliament just as everyone else does.

[17]      And so with - what was it? Absences of 1,043 days - no, that is too many, isn't it? It was there in the facts given by the citizenship judge and you agreed on that. The parties seem to agree that the citizenship judge was correct when he made that computation. He was correct when he made that computation and he set it out.

I did not mark the page. Do you remember what it was? Did you mark your page?

[18]      Mr. Peche: 12 and 13, I believe, of the Certified Tribunal Record.

Mr. Wlodyka: It was 11 and 12.

Ms. Peche: There is a computation at 12 and 13.

The Court: Yes, and you agreed on that.

Ms. Peche: Yes.

The Court: All right. Days absent 1,043; days present 346. Now, that is far short of what the Act of Parliament calls for. Residence, presence in Canada is required and this is far short of that. So, there is no power in this court, as this court sees its power, to change that or to legislate. A judge is not elected to legislate, a judge is not even appointed a senator to legislate: a judge simply has to follow the law. Perhaps that sounds simplistic, and it does not sound very creative.

[19]      These days creative judges are well liked in some quarters. But this judge is not one of those creative ones, unfortunately for the respondent - because this judge will not pretend to be a legislator.

[20]      So, if there are any questions the court will do its best to answer them. If there are no questions, we shall sadly but surely, rise.

Ottawa, Ontario

February 28, 2001

J U D G M E N T

[21]      THE MINISTER'S APPEAL is allowed and the citizenship judge's decision to award the appellant Canadian citizenship is quashed and set aside.

Judge