In re "
the long-haul trucker's dilemma"
Further observations in regards to what some might describe as "
the long-haul trucker's dilemma" (scenarios referenced by
@GuyanaGirl) . . . also affecting some airline personnel employed on international routes . . . and even more so, just as one more example among many, the off-shore oil rig worker . . . which it warrants noting, are all situations that have been the subject of discussion before. While
@GuyanaGirl may not have seen the older discussions, including at least one actual case addressed by a Federal Court, involving a long-haul "
short-fall" trucker, yes this scenario has come up periodically.
As I noted, this is not a novel or otherwise new issue. Indeed it has been around since at least a decade ago when forums like this were seeing anecdotal reports from individuals in this situation not only being RQ'd, but having to go to a Citizenship Judge hearing and being told, by the CJ, their application was going to be rejected because they failed to be physically present at least 1095 days within the previous four years. At that time there was discretion, often applied, to grant citizenship to such applicants. CJs could apply what was called the "Koo" test, determine the applicant (the long-haul trucker) was "resident" in Canada for at least three years within the relevant four, even though not physically present for 1095 days in those four years, and approve the individual for a grant of citizenship. At least one such case, as I recall, went to the FC. Too long ago, however, for me to recall the outcome.
Which leads to highlighting some significant differences between then and now, between the former residency requirement and the current physical presence requirement. Which I will get to.
I referenced a "
short-fall." This was a short-hand term for referencing grant citizenship applications made by PRs who claimed they were "
resident" in Canada for at least three years, in the then relevant four, even though they had not been physically present for three full years. We called these "
short-fall" applications, or referred to them as "
short-fall" applicants, because the number of days they were present in Canada was short of 1095.
Thing was, back then,
pouring salt into the wound, while the Harper government had increasingly pushed interpreting and applying the residency requirement as if it required 1095 days actual physical presence, CIC's formal information about citizenship eligibility not only did not alert prospective applicants that the government was pushing this, it explicitly said that a CJ could grant citizenship to applicants who applied with less than 1095 days actual presence with NO WARNING that when CIC was making the referral to the CJ it would specifically argue the application should be denied because the applicant applied with less than 1095 days actual presence.
Note, explanation for why the residency requirement was interpreted, by some, to impose a physical presence requirement, is complex, and in large part goes back to the FC decision by Justice Muldoon, in 1993, the oft-referenced Pourghasemi decision; but basically this view interpreted "
resident" (term used in the statute) in Canada to mean physically present. In contrast many CJs had, at least until those appointed by Harper, with the concurrence of FC justices (likewise, at least until those appointed by Harper), employed either a qualitative test, known as the Papadogiorgakis test of residency (based on a 1978 FC decision) which depended on "
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," or applied what was called the Koo test, based on a 1992 FC decision, which depended on determining where the applicant "
regularly, normally or customarily lives." Under either of the latter two tests, the long-haul trucker living and based in Canada easily met the eligibility requirements. And undoubtedly scores of such immigrants applied for and became Canadian citizens without a problem . . .
UNTIL, beginning around 2008 or so, without warning, without a caution, the Harper government began pushing the Pourghasemi physical presence test and urging CJs to deny such applicants a grant of citizenship.
Scores and scores and scores of citizenship applicants were caught off-guard. On one hand there were many instances in which this or that applicant had way fewer than 1095 days actually in Canada, including a substantial number who had spent just a few hundred days in Canada, who were being granted citizenship, mostly approved by CJs who had been appointed before Harper. In contrast, more and more applicants falling short by just a very few days were being denied, mostly by CJs appointed by Harper. And more than one long-haul trucker showed up in the forums after being surprised and dismayed to learn their application was being rejected because they were three, five, or ten days short, especially when they realized that if they had taken a holiday to stay in Canada, to pad the number of days, and waited just another month or so to apply, so they were not short by five or ten days, they would have been approved and become citizens.
This is not merely of academic, revisiting history interest; I have gone into this history in some depth for a reason.
Knowing what the rules are and, just as importantly, how they are actually applied, is a paramount, fundamental requirement for due process, for procedural fairness. The rules themselves can be unfair in some instances. When lines are drawn, that will inevitably exclude some who deserve to be included. But when the rules are vague, and even more so if they are variable, and egregiously more so if they are misleading, that is a recipe for sure to cook up broad injustice for many, and largely unnecessarily so.
But more than that, vague or variably applied rules lead to a large number of cases requiring adjudication, and adjudication imposes big costs, costs in terms of much longer processing times, and very substantial costs in terms of the actual expenses incurred in administering an adjudicatory process.
Thus, it was recognized by Canadian decision-makers that a clearly defined actual physical presence test addresses both of these. PRs know the rule and how it is applied, and can make decisions accordingly. And determining an applicant's qualification for citizenship does not necessitate an unwieldy, time-consuming, adjudicatory process subject to discrepancies in the exercise of discretion, but can be largely done on the basis of a simple arithmetic calculation (unless there are contested facts). What's the saying, something about two birds, one stone?
And talking about stone . . . or that which for the foreseeable future is more or less etched in stone . . . while there is much more to it, the above explains much about "why" Canada has concluded the metric SHOULD be based on actual physical presence.
What is not etched in stone are the particulars, the details. How long? In what period of time? What other conditions? Any exceptions?
Way too much to address here. But getting back to "
the long-haul trucker's dilemma," the other reason for diving so deep into the history is what it illuminates about the how-long and in-what-time-period aspect of all this. And this in turn illuminates why those with problems similar to what the OP references would be wise to let go any hope for a metric other than physical presence.
The latter first. It may not seem to be all that liberal and flexible, all that immigrant friendly, to some, to those who, as the OP references, face hardships in meeting the physical presence requirement. But the current 3/5 rule, based on physical presence, is by far the most liberal, flexible, immigrant-friendly approach anyone can reasonably anticipate, FOR CANADA. For a while, as applied to SOME, the former residency requirement was more liberal and flexible, since some PRs were granted citizenship after spending no more than three or four hundred days total in Canada (as I recall, there was at least one case where the PR was in Canada fewer than 200 days and still granted citizenship); but those cases were largely anomalies. Even among successful short-fall applications, most were close . . . so while they were not in Canada 75% of the time, they were usually in Canada at least 67% of the time, most probably at least 70%.
The current rules only require being in Canada 60% of the time. So even the long-haul trucker
based in Canada but almost exclusively working U.S. routes, should meet the presence requirement taking just three weeks holiday a year plus a few other off work days, recognizing that the first day out and the last day back both count as days IN Canada. In contrast, though, if the trucker is not actually driving routes originating in Canada, such as an independent or self-employed trucker, doing a lot of routes from and to locations in the U.S., that's a different scenario. That's working in the U.S. Work abroad, even if it is just in the U.S., is not the same as work based in Canada. But in either scenario, under the current rules the trucker knows the score, can count the days, and can make decisions accordingly.
