Federal Court Decisions

     Date: 19990106

     Docket: T-739-98

     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

     Abercio Antonio Carrillo,

     Appellant.

     REASONS FOR JUDGMENT

PINARD, J. :

[1]      This is an appeal pursuant to subsection 14(5) of the Citizenship Act, R.S.C. 1985, c. C-29, (the Act) of the decision of Stuart Hodgson, Citizenship Judge rendered and communicated to the appellant by way of a letter dated March 16, 1998.

[2]      The appellant was born in El Salvador on October 22, 1968. He was granted permanent residence status on October 14, 1987 and filed for Canadian citizenship on March 18, 1996. His application for citizenship was denied on the basis that he had not met the requirements set out at subsection 22(1) of the Act. The decision of the Citizenship Judge stated:

I found that you met all the requirements for citizenship set out in subsection 5(1) of the Citizenship Act, however, according to the evidence on file you are presently under a probation order issued on August 8, 1996 for a period of 2 years for a summary conviction. As provided under paragraph 22(1)(a) of the Citizenship Act, no person shall be granted Canadian citizenship while he is under a probation order.

This is not an appropriate case for the exercise of discretion under subsections 5(3) and 5(4) of the Citizenship Act because section 22 specifically provides that whenever it applies, "notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship".

Pursuant to subsection 14(3) of the Citizenship Act, you are therefore, advised that, for the above reasons, your application for citizenship is not approved. . . .

[3]      Subsection 22(1) of the Act reads as follows:

22. (1) Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or administered the oath of citizenship      (a) while the person is, pursuant to any enactment in force in Canada,          (i) under a probation order,          (ii) a paroled inmate, or          (iii) confined in or is an inmate of any penitentiary, jail, reformatory or prison;      [. . .]

22. (1) Malgré les autres dispositions de la présente loi, nul ne peut recevoir la citoyenneté au titre de l'article 5 ou du paragraphe 11(1) ni prêter le serment de citoyenneté:      a) pendant la période où, en application d'une disposition législative en vigueur au Canada:          (i) il est sous le coup d'une ordonnance de probation,          (ii) il bénéficie d'une libération conditionnelle,          (iii) il est détenu dans un pénitencier, une prison ou une maison de correction;      [. . .]

[4]      The appellant was convicted on August 28, 1996 of assault under section 266 of the Criminal Code. He received a suspended sentence and a probation order of two years. At the time of his hearing before the Citizenship Judge on March 9, 1998, the appellant was still under the two-year probation order. However, given that this is a trial de novo, it appears that the probation order ended on August 28, 1998, and that, therefore, the legal impediment no longer exists and that the appellant is now eligible for citizenship.

[5]      Consequently, the appeal is allowed.

                            

                                     JUDGE

OTTAWA, ONTARIO

January 6, 1999