Citizen Citizen accompanying PR (730 rule..?)

I suspected, but could not confirm, that this arises in amendments to the regulations . . . like the operational manuals as well, the regs are essentially a work in progress ironing out the details of applying the respective statutory provisions (which, likewise, are often in the process of being revised), and all this is post the adoption of IRPA in 2002.

I see the language you refer to . . . but I am not sure it was in fact adopted that way then. The Gazette is displaying information regarding "proposed" regulations including commentary on their intent, as well as alternatives. So I am not sure when the precise provision was actually implemented.

I tried to research the dates the regulations actually were adopted (trying to confirm my suspicion since I too noticed the lack of reference). I can do this in U.S. law fairly competently but since I am an American lawyer, not a Canadian one, with three decades of experience researching U.S. law (which is what I still do professionally, as a contributing editor/author to various encylopedic law publications in the U.S.), I have not conquered the ways and means of researching Canadian law yet. Moreover, through my publisher in the States I have broad access to extensive databases of U.S. law with powerful search functions (it would cost a fortune if I had to pay for the service) whereas I have nothing of that sort for Canadian law -- here I have the same as anyone else.

In trying to unravel the history a bit, though, I did come across some of the proposed language leading up to the thorough revision of immigration law which was the IRPA (taking effect in 2002), and it is actually fairly interesting to see to what extent there were so-called different schools of jurisprudence and, aligned along lines reacting to those, hard fought differences . . . the battle over implementing a strict physical presence test for citizenship, for example (which I was led to by an important federal case handed down late last year, CIC v Takla at
http://www.canlii.org/en/ca/fct/doc/2009/2009fc1120/2009fc1120.html
which goes into some detail regarding the history and various schools of jurisprudence relative to the "residency" requirement (now pretty settled by the criteria set forth in Koo re a "centralized residence").

I tend to take an academic interest in some of these questions.

It should be noted that my exposure to Canadian law has revealed a different take on using and applying precedent compared to what I am familiar with in U.S. law . . . one that might be worrisome relative to some of these extreme cases and a tortured interpretation of law like that in Smith, but . . . well, again, I think that to the extent there were different results in the field in the period 2002 to 2009, relative to this issue, I'd bet there is very little if any doubt about the applicable standard now. There is nothing in any of the CIC web-based informational materials that would even hint to the contrary, but plenty that overtly supports the "ordinarily residing with . . . " approach.

Edited by dpenabill - 02 Apr 2010 at 10:07pm

Well, Robsluv has long been adamant that they do not much follow their own rules or regs or guidelines even at CIC.

It is curious that the IAD decisions make so little reference to sources other than the IRPA itself. One rarely sees, in most contexts, a reference to the regulations even, and even more rarely a reference to an operational manual. It almost seems like the panel is making its decisions off the top of their heads, based primarily on their own understanding of things. Not exactly what a jurist likes to see.

Frankly, though, it is my impression that it is primarily those who really push the limits whose cases go so far. Like Smith (no Canadian ties whatsoever for more than two decades). Like in the Li case even (he had never really established a residence in Canada at all, and his spouse primarily lived in Canada, so even counting her time with him he barely met the 730 days).

It has been nearly two decades since I was a trial lawyer (nightmare life that was), but as one, it was nice if all the technicalities were in favor of your case, but what you really preferred was a case in which the equities weighed heavily in your favor -- it was better to have a case the person (or persons) making the decision would WANT to rule in favor of than it was to have a technically good case (unless the technicalities were overwhelming, undisputably in one's favor -- which is rarely the case, since such cases usually do not go to court in the first place).

Most of these cases involve people the officials involved do not want to rule in favor of, so they naturally go out of their way to interpret the facts and the law against them.

But, yeah, some people do get caught on the horns of a technical dilemma running into a less than lenient, not at all flexible, official/bureaucrat making decisions that will profoundly affect their lives.