T-1776-89
Sylvia Albertha Robinson (Applicant)
v.
Minister of Citizenship (Respondent)
INDEXED AS: ROBINSON V. CANADA (MINISTER OF CITIZEN
SHIP) (T.D.)
Trial Division, Jerome A.C.J.—Toronto, Novem-
ber 20; Ottawa, December 8, 1989.
Citizenship — Motion for mandamus directing respondent
to issue duplicate certificate of citizenship — Original certifi
cate confiscated by police during criminal investigation —
Application for duplicate certificate under Citizenship Act, s.
11(1) denied — Application dismissed — No legislative provi
sion for issuance of duplicate certificate — Citizenship Regu
lations, s. 26 expressly prohibiting issuance of duplicate cer
tificates — Requirement Minister issue citizenship certificate
to any citizen who has made application therefor complied
with when original certificate issued.
Judicial review — Prerogative writs — Mandamus —
Motion for mandamus directing respondent to issue duplicate
certificate of citizenship — Original certificate confiscated by
police during criminal investigation — Application for dupli
cate certificate under Citizenship Act, s. 11(1) denied —
Application dismissed — Mandamus not granted unless statu
tory duty to perform action — No legislative provision for
issuance of duplicate certificate.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Citizenship Act, S.C. 1974-75-76, c. 108, s. 11(1).
Citizenship Act, R.S.C., 1985, c. C-29, s. 12(1), 27.
Citizenship Regulations, C.R.C., c. 400, ss. 26(1),
27(1),(2).
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
CASES JUDICIALLY CONSIDERED
APPLIED:
O'Grady V. Whyte, [l983] 1 F.C. 719; (1982), 42 N.R.
608 (C.A.); Karavos v. Toronto & Gillies, [1948] 3
D.L.R. 294; [1948] O.W.N. 17 (C.A.).
COUNSEL:
C. L. Campbell for applicant.
Roslyn Levine for respondent.
SOLICITORS:
Campbell & Reitmeier, Toronto, for appli
cant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This motion brought pursuant
to section 18 of the Federal Court Act, R.S.C.,
1985, c. F-7, for an order in the nature of man-
damus directing the respondent to issue a certifi
cate or other proof of citizenship for the applicant,
came on for hearing in Toronto, Ontario, on
November 20, 1989. At that time, I gave oral
reasons and indicated that these written reasons
would follow.
The applicant was granted a certificate of
Canadian citizenship on March 24, 1981. During
an investigation conducted by the Metropolitan
Toronto Police on October 6, 1984, the applicant's
certificate of citizenship was confiscated. The cer
tificate remains in the custody of the police, who
require it as evidence in criminal legal proceed
ings. On June 29, 1987 the applicant made an
application under subsection 11(1) of the Citizen
ship Act, S.C. 1974-75-76, c. 108 for a duplicate
certificate. Her request was denied, and counsel
for the applicant was advised by a representative
of the Department of the Secretary of State of
Canada that the applicant's application could not
be processed, based on subsections 27(1) and
27(2) of the Citizenship Regulations, C.R.C., c.
400.
The applicant states that the Governor in Coun
cil has not initiated or taken any of the necessary
steps to remove her status as a Canadian citizen,
and argues, accordingly, that she is entitled to a
duplicate certificate of citizenship, pursuant to
subsection 11(1) of the Citizenship Act. She seeks
a resolution of this matter through section 18 of
the Federal Court Act, in the nature of an order of
mandamus.
The respondent argues that a writ of mandamus
may only be issued where the applicant has shown
a clear, legal right to have the thing sought by it
done. According to the respondent, the duty whose
performance it is sought to coerce by mandamus
must be actually due and incumbent upon the
officer at the time of seeking the relief, and the
writ will not lie to compel the doing of an act
which he or she is not under an obligation to
perform. The respondent points out that the appli
cant was issued a citizenship certificate in March,
1981, and that subsection 26(1) of the Citizenship
Regulations precludes the issuance of more than
one valid citizenship certificate. The certificate
issued to the applicant is still valid, the respondent
argues, it is simply "temporarily outside of her
possession". The respondent submits that there is
no duty owed to the applicant by the Secretary of
State under the Citizenship Act or Regulations to
issue a duplicate citizenship certificate in the
circumstances.
The statutory provisions relevant to this applica
tion are subsection 12(1) of the Citizenship Act,
R.S.C., 1985, c. C-29 and Regulation 26(1) of the
Citizenship Regulations, C.R.C., c. 400:
Citizenship Act:
12. (I) Subject to any regulations made under para
graph 27(i), the Minister shall issue a certificate of
citizenship to any citizen who has made application
therefor.
Citizenship Regulations:
26. (1) Subject to subsection (2), no person shall hold
(a) more than
(i) one valid certificate of naturalization or certificate of
citizenship, and
(ii) one miniature certificate of citizenship or other certifi
cate of citizenship containing his photograph; or
(b) more than one certificate of renunciation.
As I indicated at the time of hearing, this
application is dismissed for the reason that an
application for mandamus cannot succeed in the
absence of a clear statutory duty on the part of the
officer, in this case of the Department of the
Secretary of State, to perform the action request
ed. As counsel for the respondent indicated, sup
port for this position may be found in the Federal
Court of Appeal's decision in O'Grady v. Whyte,
[1983] 1 F.C. 719; (1982), 42 N.R. 608, where the
Court held that before mandamus can be granted,
the applicant must show that: 1) it has a clear
legal right to have the thing sought by it done; 2)
the duty whose performance it is sought to coerce
is actually due and incumbent upon the officer at
the time of seeking the relief; 3) the duty is purely
ministerial in nature; and 4) there has been a
demand and a refusal to perform the duty. Mr.
Justice Urie in O'Grady, supra, quoted at some
length from the Ontario Court of Appeal's deci
sion in Karavos v. Toronto & Gillies, [1948] 3
D.L.R. 294; [1948] O.W.N. 17, where Mr. Justice
Laidlaw held, at page 297 D.L.R.:
Before the remedy [mandamus] can be given, the applicant for
it must show (1) "a clear, legal right to have the thing sought
by it done, and done in the manner and by the person sought to
be coerced": High's Extraordinary Legal Remedies, 3rd ed., p.
13, art 9; p. 15, art. 10.
Neither the Citizenship Act nor Regulations
make provision for the issuance of a duplicate
certificate of citizenship to an individual who may,
for whatever reason, require one. The wording of
subsection 12(1) of the Act calls upon the Minister
to "issue a certificate of citizenship to any citizen
who has made application therefor". The Minister
complied with this particular duty when the appli
cant was issued with her certificate of citizenship
in March, 1981, and, having done so, has dis
charged any and all obligations arising from that
section.
That the wording of subsection 12(1) of the Act
compels a "one time" issuance of a certificate only
is confirmed in the wording of subsection 26(1) of
the Regulations, which states that no person shall
hold more than "one valid ... certificate of citi
zenship". The applicant may not be, at present, in
physical possession of the certificate which has
been issued to her, but there is no evidence to
suggest that the certificate is no longer in exist
ence, or that it is no longer valid. For the purposes
of the Act and Regulations, the applicant holds a
valid certificate of citizenship. Not only is there no
provision in the statute allowing for the issuance of
a duplicate, but the Regulations expressly prohibit
such an action.
I am unable to find, therefore, that the applicant
has demonstrated a legal right to the action she
seeks to have performed. There is no legal obliga
tion on the part of the Department of the Secre
tary of State to issue a duplicate certificate, and
the applicant has on that basis failed to fulfil one
of the key preconditions to the granting of
mandamus.
The applicability of both section 27 of the Regu
lations and section 27 of the Citizenship Act was
raised during argument, and my references to the
regulation and to the identically numbered section
of the Act may have given rise to some confusion.
Ultimately, neither section 27 of the Regulations
nor section 27 of the Act affect my decision herein.
I have not considered Regulation 27 in these rea
sons since the regulation deals with the surrender
ing of a certificate of citizenship to the Registrar
where there is reason to believe "that the person
may not be entitled thereto or has violated any of
the provisions of the Act", and with the Registrar's
right to retain and/or cancel the certificate in these
circumstances. The Registrar in this case does not
appear to have exercised the powers conferred on
him by regulation 27, and the section would there
fore appear to be of little relevance to the issue
before me. Section 27 of the Act empowers the
Governor in Council to make regulations providing
for, inter adia, the "number of copies of any certifi
cate ... issued under this Act ... that any person
is entitled to have". This the Governor in Council
appears to have done in section 26 of the Regula
tions which, as I have stated, is ultimately deter-
minative of the issue before me.
For the above reasons, therefore, this applica
tion is dismissed.
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.