In re Citizenship Act and In re Antonios E. Papadogiorgakis

The following are the reasons for judgment rendered in English by

THURLOW A.C.J.: The appellant's application for Canadian citizenship was refused on the ground that the appellant could not meet the residence requirement of paragraph 5(1)(b) of the Citizenship Act^[1]. In all other respects the Citizenship Judge found, as I do as well on the material before me, that the appellant met the requirements. As will appear, the appeal turns on whether the appellant was resident in Canada within the meaning of the statute during periods which he spent in attending the University of Massachusetts in Amherst Massachusetts.

At the time of the appellants application December 6, 1977, paragraph 5(1)(b) provided:

5. (1)     The Minister shall grant citizenship to any person who, not being a citizen, makes application therefor and

(b)        has been lawfully admitted to Canada for permanent residence, and has, within the four years immediately preceding the date of his application, accumulated at least three years of residence in Canada calculated in the following manner:

(i)            for every day during which he was resident in Canada before his lawful admission to Canada for permanent residence he shall be deemed to have accumulated one-half of a day of residence, and

(ii)            for every day during which he was resident in Canada after his lawful admission to Canada for permanent residence he shall be deemed to have accumulated one day of residence;

The appellant was born in Crete and is now 25 years of age. He is not married and has no family or kin living in Canada. He entered Canada on a student visa on September 5, 1970, and was admitted for permanent residence on May 13, 1974. During that period he attended Acadia University at Wolfville, Nova Scotia. In the first year and a half, he lived in residence at the university, later in a rooming house in Wolfville, and in his third year he shared an apartment at Wolfville along with three other persons. In his fourth year, he lived at Grand Pré, Nova Scotia. During the summer recesses, he worked on a ferry running from Yarmouth, Nova Scotia, to Portland, Maine. In the same period, he established a relationship with a friend and the friend's parents, and in May 1974 moved to their home at Tusket, Nova Scotia. From that time until January of 1978, he had a room in their home. He lived there when in Canada and he returned there whenever he had been out of Canada. He paid no rent for the room but contributed to the expenses of the household. He was regarded as one of the family and considered the home to be his Canadian home. Most of his personal property remained there when he was away but at such times the family also made use of the room. Since 1973, he has been a co-owner of a parcel of land nearby.

The material period for the purposes of his application is from December 6, 1973, to December 6, 1977. In the first part of that period, that is to say, from December 6, 1973, to May 13, 1974, a matter of some 158 days, he was resident in Canada but of this he can count only 79 days towards the three years necessary to meet the requirement, as this was residence before his admission to Canada for permanent residence.

Between May 13, 1974, and December 6, 1977, he was absent from Canada on a number of occasions. First he attended the university in Massachusetts from January 28, 1976, to mid-June of that year, a period of some four and a half months constituting the university semester. He then returned to Tusket, Nova Scotia, but from July 28 to August 28 was absent on a vacation.

From early in September to mid-December and from late January 1977 to August 1977, he again attended the University of Massachusetts but returned to Tusket for the Christmas break. He also returned there on two weekends of each month while attending the university. His only purpose in going to Massachusetts was to pursue his studies and, in fact, he emerged at the end of the period, consisting of some thirteen months in all, with degrees as Master of Business Administration and Master of Hotel, Restaurant and Travel Administration. He was not employed there at any time.

While in Massachusetts, be lived in an old school bus which he had converted to living accommodation and throughout the time it was operated on its Nova Scotia registration. His schooling was financed by student loans and a foreign scholarship awarded to him as a Canadian student.

Between October 4, 1977, and December 3, 1977, he was absent from Canada on a further vacation.

He was thus physically present in Canada only for comparatively short, though frequent, periods in 1976 and 1977. The question arises whether he continued to be resident in Canada within the meaning of the statute while he was absent for the purpose of attending the university in Massachusetts. If so, he can meet the requirement for, if these periods can be counted, he will have established residence for the whole of the period of some three and a half years from May 13, 1974, to December 6, 1977, subject only to the vacation periods which, in any event, cannot affect the result and, as I see it, need not be considered.

I should add that there is no evidence that the appellant has been absent from Canada since December 6, 1977, and that he gave evidence of plans to open a business of his own in Nova Scotia.

I turn to the question of the interpretation of the words "residence" and "resident" in paragraph 5(1)(b) of the Act.

In Blaha v. Minister of Citizenship & Immigration^[2], Pratte J. adopted an interpretation of the corresponding terms in the former statute, the Canadian Citizenship Act^[3], which was somewhat narrower than the ordinary meaning of the terms. He said at pages 524-525:

The Canadian Citizenship Act does not define the terms "reside" or "residence". It may be noted, however, that it defines the expression "place of domicile" in the following manner:

2.   "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;

As the Act does not define the words "reside" and "residence", we must arrive at their meaning by reference to the ordinary connotation, with the single obvious qualification that they cannot be given a meaning which is identical to that given by Parliament to the expression "place of domicile".

These two words, "reside" and "residence", do not have a definite meaning in law; their meaning varies with the context in which they are used. Since I am to decide the meaning of these terms in the Canadian Citizenship Act, I am unable, therefore, to rely on decisions in which the courts have had to specify the meaning of those same words in other statutes, such as a tax statute (Thomson v. M.N.R. [1946] S.C.R. 209), an electoral statute (Re An Election in St. John's South, New-foundland (1960) 22 D.L.R. (2d) 288)), or a procedural statute (Ethier v. Nault [1952] Que. Q.B. 216).

In my opinion a person is resident in Canada within the meaning of the Canadian Citizenship Act only if he is physically present (at least usually) on Canadian territory. I feel that this interpretation is in keeping with the spirit of the Act, which seems to require of the foreigner wishing to acquire Canadian citizenship, not only that he possess certain civic and moral qualifications, and intends to reside in Canada on a permanent basis, but also that he has actually lived in Canada for an appreciable time. Parliament wishes by this means to ensure that Canadian citizenship is granted only to persons who have shown they are capable of becoming a part of our society.

Further, this interpretation is confirmed by the comparison which can be made between the English and French versions of subparagraph (1)(c)(i) of section 10. The expression "each full year of residence in Canada", which appears in the English text of this subparagraph, has been translated in the French, text by the words "chaque année entière passée au Canada".

If this limited meaning is to be given to the word "reside'', as I think it has to be, the Court was clearly right in holding that appellant did not reside in Canada for five of the eight years or for twelve of the eighteen months immediately preceding the date of his application.

I may say at once that, if the Canadian Citizenship Act were still in effect and applicable to the present case, I would adopt and follow this reasoning, as other judges of the Court have done, and the result might be to deny the appeal. However, in the new Act, the Citizenship Act, which applies to this case, there is no definition of "place of domicile", there is no reference to "place of domicile" and the French language version does not use the expression chaque année entière passée au Canada. A substantial part of the reasoning on which the interpretation was based is, thus, as it seems to me, no longer applicable and one is left to interpret the words "residence" and "resident" by giving to them their ordinary meaning in the context in which they are found.

In Thomson v. M.N.R.^[4], the Supreme Court considered the ordinary meaning of the expression ''ordinarily resident" in the context of a statute imposing taxation on persons "ordinarily resident" in Canada. Rand J. said at pages 224 and 225:

The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance "residing" is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the matter. In one case it is satisfied by certain elements, in another by others, some common, some new.

The expression "ordinarily resident" carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person [sic] concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.

For the purposes of income tax legislation, it must be assumed that every person has at all times a residence.

But in the different situations of so-called "permanent residence'', "temporary residence", "ordinary residence", "principal residence" and the like, the adjectives do not affect the fact that there is in all cases residence; and that quality is chiefly a of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question. It may be limited in time from the outset, or it may be indefinite, or so far as it is thought of, unlimited. On the lower level, the expressions involving residence should be distinguished, as I think they are in ordinary speech, from the field of "stay" or "visit".

While the statute there under consideration was an income tax law, this discussion appears to me to general enough to be of some assistance in interpreting the meaning of the words here in question. At the same time, what Pratte J. refers to as the spirit of the citizenship legislation must, I think, be borne in mind. It seems to me that the words ''residence'' and ''resident'' in paragraph 5(1)(b) of the new Citizenship Act are not as strictly limited to actual presence in Canada throughout the period as they were in the former statute but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. This may not differ much from what is embraced by the exception referred to by the words "(at least usually)" in the reasons of Pratte J. but in a close case it may be enough to make the difference between success and failure for an applicant.

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study. The fact of his family remaining there while he is away may lend support for the conclusion that he has not ceased to reside there. The conclusion may be reached, as well, even though the absence may be more or less lengthy. It is also enhance if he returns there frequently when the opportunity to do so arises. It is, as Rand J. appears to me to be saying in the passage I have read, "chiefly a matter of the degree to which a person in mind and fact settles into or maintains or centralizes his ordinary mode of living with its accessories in social relations, interests and conveniences at or in the place in question".

Applying this somewhat broader interpretation to the facts of the present case, I am of the opinion that the appellant was, throughout the material time, that is to say, from May 1974 to December 1976 resident at the home of his friends at Tusket, Nova Scotia. He did not own the property but it was there that he centralized his mode of living in May of 1974. It was there that he lived throughout the remainder of 1974 and the year 1975. In no ordinary sense could his presence there in that period be called a "stay" or a "visit". And when, in 1976, he left to go to university, he did so only for the temporary purpose of pursuing his studies. He did so without closing out or breaking the continuity of his maintaining or centralizing his ordinary mode of living there. He took with him what he needed for the purpose of his stay in Massachusetts, but left the remainder of his belongings at the home where he had been living. And he returned there at frequent intervals for weekends and for the Christmas and summer breaks. He returned there as well when his courses were concluded. As it appears to me his mode of living was centralized there and had been centralized there for more than a year and a half before he began his courses at the university and it did not cease to be centralized there while he was at the university. In my view, it continued in all respects as before, subject only to the necessity of his absence therefrom for the temporary purpose suing his studies.

My conclusion is, therefore, that the appellant meets the residence requirement of paragraph 5(1)(b) of the Act and that his appeal succeeds.

^[1] S.C. 1974-75-76, c. 108.

^[2] [1971] F.C. 521.

^[3] R.S.C. 1970, c. C-19.

^[4] [1946] S.C.R. 209.