National Post

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Friday, April 09, 1999

Citizenship rulings a 'sorry mess,' lawyer says
Contradictory judgments

Andrew Duffy
Southam News

OTTAWA - Federal Court judges cannot agree on how to interpret the rules that govern Canadian citizenship, producing a string of decisions that are in direct conflict with one another, immigration lawyers say.

Andrew Wlodyka, a leading Vancouver citizenship lawyer, calls the situation a "sorry mess."

"They can't agree on anything," said Mr. Wlodyka. "It's a crapshoot out there: In two cases with the identical set of facts, who the judge is will determine if you are successful or not."

In a recent judgment, Federal Court Judge Allan Lufty recognized the existence of the problem, which centres on differing interpretations of what constitutes residency in Canada.

"The divergence of view, both in this Court and among citizenship judges, has brought uncertainty to the administration of justice in these matters," Judge Lufty conceded.

The Federal Court -- and politically appointed citizenship judges -- are divided on how to interpret the residency requirement of the Citizenship Act.

The Supreme Court has never been called upon to settle the question because the act does not allow for an appeal of Federal Court citizenship cases.

It means judges are not bound by a single precedent and can choose whichever interpretation suits them. "This factor can create and does still create a scandalous incertitude in the law," Federal Court Judge Francis Muldoon wrote in a recent decision.

Federal law now states an immigrant must reside in Canada for three of the previous four years to gain citizenship. But it does not spell out what "residency" means.

Some judges believe the "quality of attachment to Canada" must be assessed, not just the number of days a person is physically present in the country.

That view was recently set out by Federal Court Judge Jean-Eudes Dube. "Residency in Canada for the purposes of citizenship does not imply full-time physical presence," he wrote.

Lucienne Robillard, the Immigration Minister, is expected to end the confusion when she introduces a new Citizenship Act later this year.

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