Given the shocking amount of legislative change, both enacted and proposed by the Harper government over the past number of years I remain both puzzled and amazed that the government has not sought to bring some legislative clarity to the area of Citizenship law in Canada.  Some background is necessary in order to understand how chaotic the present state of affairs is.  Perhaps I can use an active case from my own practise to exemplify the situation.  Mrs. Chen (not her real name) has been a Permanent Resident in Canada for more than 5 years.  Section 5 (1) of the Citizenship Act stipulates that the Minister shall grant citizenship to any person who applies for Citizenship and is eighteen years of age or over, is a permanent resident and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada.   Having assumed she fit within the definition Mrs. Chen applied for citizenship.  After a two year wait (not at all uncommon) she appeared before a Citizenship judge who interviewed her and requested some additional information regarding some gaps of time related to her 3 years of residence.  After considering the further evidence the Citizenship Judge granted Mrs. Chen Citizenship.  Shortly thereafter, Mrs. Chen was served with an Appeal naming her as the respondent in an action by the Minister challenging the decision of the Citizenship judge.  Poor Mrs. Chen arrived at my office perplexed about how it could be the case that the Minister was appealing her citizenship.

The grounds of the Minister’s application are that the Citizenship Judge did not properly consider gaps in the 3 year period of Mrs. Chen’s residence.  In addition, the Minister argues that the Citizenship Judge failed to properly set out which of the various tests he was applying to calculate Mrs. Chen’s 3 years of residence.  The Minister’s application hints at the odd state of affairs.  One would assume that calculating three years of residency would involve the relatively simple exercise of looking up the definition of “residence” in the Act.  However, the Citizenship Act fails to clearly define the term “residence”.  Thus, the question of how to calculate the 3 year period of residence has been left to the Federal Court to sort out.  There is nothing particularly exceptional about Courts having to interpret poorly or intentionally ambiguous drafted legislation.  However, in this instance, there is one problem.  There is no appeal from a Federal Court Appeal of a Citizenship decision, thus there is no higher court to sort out conflicting interpretations of the law by different Judges of the Federal Court Trial Division.

Predictably, different judges considering this same issue have come to radically different conclusions.  Without going through the rather complicated history of this legislative interpretation, the Federal Court Trial Division has basically divided itself into two very distinct schools of thought on the issue.  One school holds that “residence” is to be determined quantitatively[1] by simply doing a pure number crunching exercise.  According to this school, the Citizenship Judge must simply count up the days and determine whether they add up to 3 years.  If the applicant cannot account for certain days or was not present for certain days they do not count towards the 3 year requirement.  The second school[2], interprets the legislation qualitatively and finds that the 3 year residence is not to be taken literally as a physical 3 year requirement but rather it holds that the applicant must have intended throughout the 3 year period to reside in Canada “regularly, normally or customarily”, allowing for absences due to work or holidays for example.

As a result of these two very different interpretations of the law, the fate of an applicant like Mrs. Chen, who has not amassed 3 years of physical presence but has demonstrated a clear intention to make Canada her permanent home for 3 of the past 4 years, will completely depend on the Citizenship judge she appears before.  A judge who interprets the law using a quantitative test will refuse Mrs. Chen’s citizenship application, while Judges using the qualitative test will grant her citizenship.

The result is not only arbitrary but leaves almost every party with the inability to predict, with any kind of certainty, what the outcome of any particular case will be.  This is exactly the opposite of what the law hopes to achieve.  When one reads the case law the frustration of the Court is palpable, yet the Federal Court recognises its hands are tied.  Without a higher Court to resolve it’s differences the best the Federal Court can muster is the view that the Citizenship Judge decides the case correctly[3] if he follows one of the two tests and applies it correctly to the facts of the case[4].  The only hope for a resolution to nearly 30 years of confusion is that the government amendment or draft new legislation.  Until that time the Mrs. Chen’s of the world will simply have to roll the dice and hope for the best[5].