Date: 20000804
Docket: T-1200-99
BETWEEN:
RYSZARD FRANKOWSKI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J. (ex officio)
[1] When one provision of the Citizenship Act, R.S.C. 1985, c. C-29 as amended, provides for the granting of citizenship "notwithstanding any other provision of this Act" and another provision prohibits the granting of citizenship "notwithstanding anything in this Act", there is an apparent conflict between the provisions.
[2] The issue in this judicial review is the resolution of such apparent conflict. For ease of reference, I have underlined the parts of each such provision which are relevant to the conflict issue. Paragraph 22(2)(a) provides:
| 22 (2) Notwithstanding anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under section 5 or subsection 11(1) or take the oath of citizenship if, (a) during the three year period immediately preceding the date of the person's application, ... the person has been convicted of an offence under subsection 29(2) or (3) or of an indictable offence under any Act of Parliament, other than an offence that is designated as a contravention under the Contraventions Act. |
22 (2) Malgré les autres dispositions de la présente loi, mais sous réserve de la Loi sur le casier judiciaire, nul ne peut recevoir la citoyenneté au titre de l'article 5 ou du paragraphe 11(1) ni prêter le serment de citoyenneté s'il a été déclaré coupable d'une infraction prévue aux paragraphes 29(2) ou (3) ou d'un acte criminel prévu par une loi fédérale, autre qu'une infraction qualifiée de contravention en vertu de la Loi sur les contraventions : a) au cours des trois ans précédant la date de sa demande; |
[3] Subsection 5(4) provides:
| 5(4) In order to alleviate cases of special and unusual hardship or to reward services of an exceptional value to Canada, and notwithstanding any other provision of this Act, the Governor in Council may, in his discretion, direct the Minister to grant citizenship to any person and, where such a direction is made, the Minister shall forthwith grant citizenship to the person named in the direction. |
5(4) Afin de remédier à une situation particulière et inhabituelle de détresse ou de récompenser des services exceptionnels rendus au Canada, le gouverneur en conseil a le pouvoir discrétionnaire, malgré les autres dispositions de la présente loi, d'ordonner au ministre d'attribuer la citoyenneté à toute personne qu'il désigne; le ministre procède alors sans délai à l'attribution. |
[4] The facts are not in dispute. The applicant is a person to whom paragraph 22(2)(a) applies, as he had been convicted of trafficking in narcotics within three years of his citizenship application. The Citizenship Court Judge ruled that the applicant was prohibited from being granted Canadian citizenship:
| Since this conviction occurred during the three year period preceding the date of your application, you are prohibited, as provided by subsection 22(2) of the Citizenship Act, from being granted Canadian citizenship. |
[5] However, under subsection 15(1) of the Citizenship Act, the Citizenship Court Judge is required to consider whether the factors in subsection 5(4) are applicable before making a negative decision against an applicant for citizenship. Subsection 15(1) provides:
| 15 (1) Where a citizenship judge is unable to approve an application under subsection 14(2), the judge shall, before deciding not to approve it, consider whether or not to recommend an exercise of discretion under subsection 5(3) or (4) or subsection 9(2) as the circumstances may require. |
15 (1) Avant de rendre une décision de rejet, le juge de la citoyenneté examine s'il y a lieu de recommander l'exercice du pouvoir discrétionnaire prévu aux paragraphes 5(3) ou (4) ou 9(2), selon le cas. |
[6] In this case, the judge ruled:
| This is not an appropriate case for the exercise of discretion under subsection 5(3) and 5(4) of the Citizenship Act because section 22(2)(a) specifically provides that whenever it applies "Notwithstanding anything in this Act, a person shall not be granted citizenship under section 5 ...". |
The applicant argues that the Citizenship Judge declined jurisdiction by refusing to consider whether or not to recommend an exercise of discretion under subsection 5(4) as required by subsection 15(1). He says that subsection 5(4) prevails over paragraph 22(2)(a) and that there is a discretion in the Governor in Council to direct the Minister to grant citizenship, "notwithstanding any other provision of this Act".
[7] In Driedger on the Construction of Statutes (3d ed.) by Ruth Sullivan, Associate Professor of Law, University of Ottawa, the learned author points out at page 176 that the presumption of coherence in a statute is virtually irrebuttable and the Courts must find some method to reconcile conflicting provisions.
| It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as part of a functioning whole. ... The presumption of coherence is also expressed as a presumption against internal conflict. It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. |
...
| The presumption of coherence is virtually irrebuttable. Since disputes must be resolved by the courts in a definitive fashion in accordance with "the law", contradiction or inconsistency in the law cannot be tolerated; some method of reconciliation must be found. The courts have found a number of strategies to ensure this result. |
[8] Conflict resolution techniques employed by the Courts are identified in Driedger at page 177:
| If the provisions cannot both apply without conflict, the courts resort to one of the conflict avoidance or conflict resolution techniques at their disposal. These include (1) interpretation to avoid conflict; (2) the paramountcy of some categories of legislation over others; (3) implied exception (generalia specialibus non derogant); and (4) implied repeal. Of course, these interpretive strategies are subject to any express solutions provided by the legislature. |
[9] In the present case, the implied exception (generalia specialibus non derogant) is, I think, the relevant technique to apply. It is described in Driedger in the following manner at page 186:
| Where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one. The specific prevails over the general; it does not matter which was enacted first. |
| ....in effect, the specific provision implicitly carves out an exception to the general one. |
[10] In this case, the general provision is subsection 5(4) and the more specific provision is paragraph 22(2)(a). Paragraph 22(2)(a) applies to a limited class of persons. It specifically addresses the situation of persons convicted of certain offences within three years of their citizenship application. It is comprehensive in that it refers expressly to a prohibition against the grant of citizenship under section 5 or subsection 11(1) or the taking of the oath of citizenship. It defines precisely the period at issue, three years immediately preceding the date of the person"s application. It is stated to be subject to the Criminal Records Act , R.S.C. 1985, c. C-47. It defines exactly the offences which give rise to its application.
[11] Having regard to the more general subsection 5(4), it is true that it applies to alleviate cases of special and unusual hardship or to reward service of an exceptional nature to Canada. However, subsection 5(4) may apply whenever, for any reason provided in the Act, a grant of citizenship has been refused. In other words, it may apply, in its terms, to anyone subject to a negative determination under the Act.
[12] Reading paragraph 22(2)(a) as an implied exception to the words "Notwith-standing any other provision of this Act" in subsection 5(4), permits these words in subsection 5(4) to still be operative in respect of other provisions of the Act that themselves do not contain the words "Notwithstanding anything in this Act". Thus, for example, subsection 5(4) could operate in circumstances where an application for citizenship was refused for non-compliance with any of the provisions of subsection 5(1), e.g. length of residence in Canada, knowledge of official languages, etc.
[13] On the other hand, there is no way that subsection 5(4) could be an implied exception to paragraph 22(2)(a). To find that subsection 5(4) operates notwithstanding paragraph 22(2)(a) impliedly repeals the words "Notwithstanding anything in this Act" in paragraph 22(2)(a). Implied repeal usually is not applicable when provisions are enacted at the same time, which is the case here. Professor Sullivan states at page 188 in Driedger, supra, that:
| Where two provisions are in conflict and the conflict cannot be resolved through other means, the more recently enacted provision prevails over and excludes the application of the earlier one. The earlier provision is said to be impliedly repealed. |
[14] Further, when faced with having to choose between implied exception or implied repeal, implied exception is to be preferred. As stated in Driedger at page 191:
| As a method of resolving conflict, implied exception is generally preferred to implied repeal. It is preferred because unlike implied repeal, which sacrifices one provision to another, implied exception permits both provisions to operate. |
[15] Applying the implied exception technique to resolve the apparent conflict between subsection 5(4) and paragraph 22(2)(a) and considering subsection 5(4) the more general and paragraph 22(2)(a) the more specific provision, I conclude that the prohibition against the grant of citizenship to a person within three years of conviction for an offence referred to in paragraph 22(2)(a) is an implied exception to the general discretion conferred on the Governor in Council in subsection 5(4) to direct the Minister to grant citizenship.
[16] In the result, I think the learned Citizenship Court Judge was correct in finding that because paragraph 22(2)(a) was applicable, this was not a case for the exercise of discretion under subsection 5(4). As there was no discretion to be exercised by the Governor in Council under subsection 5(4) in this case, there was no obligation on the Judge under subsection 15(1) to do more than he did.
[17] The judicial review is dismissed.
"Marshall Rothstein"
Judge