Federal Court Decisions

Decision Information

Decision Content


Date: 19980106


Docket: T-167-97

    

IN THE MATTER OF THE CITIZENSHIP ACT,

R.S.C., 1985, c. C-29


AND IN THE MATTER OF an appeal from the

decision of a Citizenship Judge


AND IN THE MATTER OF


Wing Man Amanda Lam,

     Appellant.

     REASONS FOR JUDGMENT

    

MULDOON, J.:.

[1]      The facts of this case are remarkably analogous to those of the case of Papadogiorgakis [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, which appears to be a leading reference in this and other appeals regard the length-of-residence qualification for citizenship expressed in paragraph 5(1)(c) of the Act. The Papadogiorgakis decision, although crafted by a highly respected now retired Associate Chief Justice of this Court, is not binding on this Court, because there was and is no provision for appeal both then and now, and there is accordingly no binding jurisprudence, unfortunately.

[2]      Despite having been decided before judges got into bad habits after promulgation of the Canadian Charter of Rights and Freedoms (all honour to it), the Papadogiorgakis judgment stretched the application of paragraph 5(1)(c) as it now is. The Charter, of course, permits judges to strike down, stretch, or compress duly enacted legislation in cases where such legislation conflicts with the Charter, but not in all or any other cases, such as the present case.

[3]      In such other cases, judges must remember that the judiciary is not a social-working, or a please-you-lest-you-feel-bad type of institution and therefore judicial restraint is much called for. The appellant's counsel astutely reminded the Court of this judge's decision in Hotchand Paramanand Badlani [1984] 1 F.C. 1145 (digested), in which it was stated that one should not stretch the application of Papadogiorgakis. Badlani was also founded on a reasonable desire for judicial consistency in these residence cases, but that desire has, in the meanwhile, along with the desired consistency, been all blown to smithereens.

[4]      Here, however, the appellant while pursuing studies at Cornell University at Ithaca, New York, drove back to the family residence in Toronto at least once per month, long weekends and holidays prior to completing her course in May, 1996. She established close parallel with the Papadogiorgakis case, which case is not stretched by applying it herein. Papadogiorgakis ought not to be extended because: (a) strictly speaking it was not correctly

decided; and (b) judges have no power to legislate against the manifest will of Parliament, which never authorized ignoring paragraph 5(1)(c) of the Act.

[5]      The present state of affairs wherein the Trial Division of this Court is riven between strict constructionists and lax constructionists must be very confusing for Citizenship Judges and for the law profession.

[6]      Nevertheless, on the facts of this case as presented in documents and testimony, and thanks to the submissions of counsel and of the amicus curiae, the appeal is allowed with no disrespect for the Citizenship Judge.

[7]      These appeals are said to be proceedings de novo, with the exception of the Citizenship Judge's exclusive discretion pursuant to subsections 5(3) and (4): Khat (1991) 49 F.T.R. 252 (Stayer, J.). Therefore, that which the Citizenship Judge ought to have done pursuant to subsection 14(2), shall be done, namely: to approve the appellant's application for citizenship, notify the Minister accordingly and provide the Minister with a copy of these reasons.

                         "F.C. Muldoon"

                             Judge

Toronto, Ontario

January 6, 1998

     FEDERAL COURT OF CANADA


Date: 19980106


Docket: T-167-97

BETWEEN:

IN THE MATTER OF THE CITIZENSHIP ACT,

R.S.C., 1985, c. C-29

AND IN THE MATTER OF an appeal from the

decision of a Citizenship Judge

AND IN THE MATTER OF

Wing Man Amanda Lam,

     Appellant.

    

     REASONS FOR JUDGMENT

    

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

DOCKET:                  T-167-97

STYLE OF CAUSE:              IN THE MATTER OF THE CITIZENSHIP ACT,

                     R.S.C., 1985, c. C-29

                     AND IN THE MATTER OF an appeal from the

                     decision of a Citizenship Judge

                     AND IN THE MATTER OF

                     Wing Man Amanda Lam,

DATE OF HEARING:          JANUARY 5, 1998

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR JUDGMENT

BY:                      MULDOON, J.

DATED:                  JANUARY 6, 1998

APPEARANCES:              Mr. Cecil L. Rotenberg, Q.C.

                         For the Appellant

                     Mr. Peter K. Large

                         Amicus Curiae

SOLICITORS OF RECORD:      Mr. Cecil L. Rotenberg, Q.C.

                     Barrister and Solicitor

                     Suite 808

                     255 Duncan Mill Road

                     Don Mills, Ontario

                     M3B 3H9

                         For the Appellant

                      Mr. Peter K. Large

                     Barrister and Solicitor

                     610-372 Bay Street

                     Toronto, Ontario

                     M5H 2W9

                         Amicus Curiae

            


 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.