Date: 19991104
Docket: T-1650-98
OTTAWA, ONTARIO, THE 4th DAY OF NOVEMBER 1999
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
LLOYD LEWIS McLEAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON an application by the Applicant, pursuant to section 18.1 of the Federal Court Act, for judicial review of the decision of George Hill, dated the 27th day of July, 1998, that the Applicant was not eligible for a grant of citizenship under paragraph 5(2)(b) of the Citizenship Act and the Applicant seeking the following relief:
(a) an order, pursuant to subsection 18.1(3) of the Federal Court Act, quashing the decision of the Program Support Officer dated July 27, 1998 or setting aside the decision and referring the matter back to the Respondent for determination in accordance with such directions as are considered appropriate;
(b) a declaration that the Applicant is a citizen pursuant to paragraph 3(1)(d) of the Citizenship Act; and
(c) such further and other orders or relief or both as counsel may advise and as the Honourable Court may permit.
THIS COURT ORDERS that the application for judicial review is dismissed.
____________________________
Associate Chief Justice
Date: 19991104
Docket: T-1650-98
BETWEEN:
LLOYD LEWIS McLEAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD A.C.J.
:NATURE OF THE PROCEEDING
This is an application for judicial review of the decision of Program Support Officer, George Hill, dated July 27, 1998, made pursuant to paragraph 5(2)(b) of the Citizenship Act.
BACKGROUND
The applicant, Lloyd Lewis McLean, is an American citizen. The applicant's mother was born in the Province of Saskatchewan on December 21, 1922. The applicant's father was born in the United States in 1921. The applicant's parents were married in 1942 and subsequently moved to Clinton Iowa, where the applicant was born on November 4, 1943.
The applicant's parents divorced and the applicant came to Canada with his mother and sister sometime between 1947 and 1949.
On December 13, 1951, the applicant was granted landing as a permanent resident. He lost his status as a permanent resident when he was first ordered deported on March 7, 1972.
The applicant was the subject of a number of inquiries held pursuant to subsection 11(1) of the Immigration Act, 1970. During these inquiries, the applicant argued that he ought not to be deported from Canada on the basis that he was a Canadian citizen. In each of these inquiries, the Adjudicator determined that the applicant was not a Canadian citizen.
By way of letter dated November 3, 1997, the applicant requested that he be issued a certificate of proof of Canadian citizenship on the basis that he was born in the United States in 1943 to a Canadian born mother. This application was made in the belief that he was entitled to Canadian citizenship pursuant to the Supreme Court decision in Benner v. Secretary of State of Canada.
The respondent treated the application as an application for Canadian citizenship and, by way of a letter dated July 27, 1998, denied the applicant's application. Relevant portions of the letter are as follows:
This refers to the application for the grant of citizenship under paragraph 5(2)(b) of the Citizenship Act that you filed on behalf of Mr. Lloyd Lewis McLean.
To be eligible to apply for a grant of citizenship under paragraph 5(2)(b), a person must have been born between 1 January 1947 and 15 February, 1977, in wedlock, to a Canadian citizen mother and a non citizen father.
[...]
The Supreme Court of Canada decision in Benner v. Secretary of State of Canada et al was only applicable to persons who were eligible to apply for a grant of citizenship under paragraph 5(2)(b)of the Citizenship Act.
Counsel for the applicant affirmed that the applicant always believed that he had an automatic right to Canadian citizenship through his mother. Counsel for the applicant further affirmed:1.that the applicant is not challenging the constitutionality of paragraph 5(2)(b) of the Citizenship Act.
2. that the applicant does not fit the criteria of paragraph 5(2)(b) of the Citizenship Act.
3. that the applicant never intended that his application be processed under paragraph 5(2)(b) of the Citizenship Act.
Nevertheless, counsel for the applicant states that the Program Support Officer erred in two ways when reaching his decision. First, he erred in law when he sought to apply paragraph 5(2)(b) of the Citizenship Act to the applicant's circumstances. As Mr. McLean asserts a right to Canadian citizenship, his application ought to have been processed under paragraph 3(1)(d) of the Citizenship Act.
Secondly, the Program Support Officer erred when he failed to apply the Supreme Court of Canada decision in Benner v. Secretary of State to the applicant's circumstances. Although this decision dealt specifically with the constitutionality of paragraph 5(2)(b) of the Citizenship Act, counsel argues that the underlying rational applies to Mr. McLean's situation.
ISSUE 1: Did the program officer err when considering Mr. McLean's application under paragraph 5(2)(b) of the Citizenship Act? If so, what provisions apply?
The applicant submits that the Program Support Officer committed an error of law when he processed the application as a request for a grant of citizenship pursuant to paragraph 5(2)(b) of the Citizenship Act. The request should have been processed under paragraph 3(1)(d) of the Citizenship Act, the provision which enumerates the categories of persons who have a right to Canadian citizenship.
Much of this decision turns on statutory interpretation. As such, it is important to highlight the provision which the Program Support Officer sought to apply as well as the historical development of the Citizenship Act.
The concept of Canadian Citizenship was introduced on January 1st 1947 with the creation of the Canadian Citizenship Act (hereinafter the "1947 Act"). Sections 4 and 5 of the 1947 Act are relevant for the purposes of this proceeding and reads as follows:Natural-born Canadian Citizens
4. A person, born before the commencement of this Act, is a natural-born Canadian Citizen:
(b) if he was born outside of Canada [...] and his father, or in the case of a person born out of wedlock, his mother
(i) was born in Canada [...] and had not become an alien at the time of that person's birth.
If, at the commencement of this Act, that person has not become an alien, and has either been lawfully admitted to Canada for permanent residence or is a minor.
5. (1) A person, born after the commencement of this Act, is a natural-born Canadian citizen:
(b) if he is born outside of Canada elsewhere than on a Canadian ship and
(i) his father, or in the case of a child born out of wedlock, his mother, at the time of that person's birth, is a Canadian citizen by reason of having been born in Canada or on a Canadian ship, or having been granted a certificate of citizenship or having been a Canadian citizen at the commencement of this Act.
By virtue of paragraph 4(b)(i), a child born in wedlock, prior to 1947, was granted citizenship if the father was born in Canada. By virtue of subparagraph 5(1)(b)(i), a child born in wedlock, after 1947, was granted citizenship if the father was a Canadian citizen. Clearly, both these provisions of the 1947 Act created differential treatment based on the gender of the parent.
In 1977, in an effort to remove this differential treatment, Parliament repealed the 1947 Act and replaced it with the current Citizenship Act. Some of the 1947 provisions were incorporated by reference in the new Act. Such is the case with paragraph 5(2)(b) of the Citizenship Act.
The differential treatment identified above was partially remedied by virtue of paragraph 5(2)(b) of the Citizenship Act.
| (2) The Minister shall grant citizenship to any person who (b) was born outside Canada, before February 15, 1977, of a mother who was a citizen at the time of his birth, and was not entitled, immediately before February 15, 1977, to become a citizen under subparagraph 5(1)(b)(i) of the former Act, if, before February 15, 1979, or within such extended period as the Minister may authorize, an application for citizenship is made to the Minister by a person authorized by regulation to make the application. |
| (2) Le ministre attribue en outre la citoyenneté_: (b) sur demande qui lui est présentée par la personne qui y est autorisée par règlement et avant le 15 février 1979 ou dans le délai ultérieur qu'il autorise, à la personne qui, née à l'étranger avant le 15 février 1977 d'une mère ayant à ce moment-là qualité de citoyen, n'était pas admissible à la citoyenneté aux termes du sous-alinéa 5(1)b)(i) de l'ancienne loi. |
In essence, paragraph 5(2)(b) of the Citizenship Act states that children born prior to 1977, the date at which the current Citizenship Act came into effect, who were denied Canadian Citizenship by virtue of their birth to a Canadian mother would now be retroactively granted citizenship upon an application made to the Minister. However, paragraph 5(2)(b) only refers to subparagraph 5(1)(b)(i) of the 1947 Act, the provision which dealt with children born after 1947. In effect, paragraph 5(2)(b) of the Citizenship Act establishes a retroactive right to Canadian citizenship for children born between 1947 and 1977. Since the applicant was born in 1943, paragraph 5(2)(b) of the Citizenship Act does not apply to him.
The applicant asserts that as a child born in 1943 to a mother born in Canada, he is entitled to Canadian Citizenship by virtue of paragraph 3(1)(d) of the Citizenship Act. It reads as follows:
| 3. (1) Subject to this Act, a person is a citizen if [...]
(d) the person was a citizen immediately before February 15, 1977 |
3. (1) Sous réserve des autres dispositions de la présente loi, a qualité de citoyen toute personne [...] d) ayant cette qualité au 14 février 1977; |
In order for Mr. McLean's claim to succeed under paragraph 3(1)(d) of the Citizenship Act, he must demonstrate that he was a citizen immediately prior to February 15, 1977.
Prior to February 15, 1977, the date at which the current Citizenship Act was enacted, the applicant was governed by paragraph 4(b)(i) of the 1947 Act, the section which dealt with children born prior to 1947.
Paragraph 4(b)(i) of the 1947 Act entitled a child to Canadian citizenship where this child was born outside of Canada, in wedlock, before 1947, to a Canadian born father. Since Mr. McLean was born outside of Canada, in wedlock, in 1943, to a mother born in Canada, he did not qualify for Canadian citizenship.
Since Mr. McLean was not a Canadian citizen immediately before February 15, 1977, he cannot claim entitlement to such citizenship based on paragraph 3(1)(d) of the Citizenship Act.
A person who does not have the right to citizenship under sections 3 to 5 of the Act may nevertheless, in special cases, be granted citizenship pursuant to subsection 5(4) of the Act.
ISSUE 2: Does the Supreme Court decision in Benner v. Canada (Secretary of State) support Mr. McLean's assertion that he is entitled to Canadian Citizenship?
The decision in Benner v. Canada was handed down by the Supreme Court of Canada in 1997. The Supreme Court of Canada noted that paragraph 3(1)(e) and paragraph 5(2)(b) of the Citizenship Act created two classes of children. Under paragraph 3(1)(e), children born after 1947 of Canadian fathers were granted an automatic right to Canadian citizenship. Under paragraph 5(2)(b), children born after 1947 of Canadian mothers, were granted a Canadian citizenship upon completion of security checks and an oath of allegiance. As such, the court held that paragraph 5(2)(b) of the Citizenship Act violated section 15 of the Canadian Charter of Rights and Freedoms by virtue of the differential treatment accorded to children born of Canadian mothers.
In response to the Benner decision, the part of paragraph 5(2)(b) dealing with security checks and oaths, is no longer operative so as to accord an automatic right to Canadian citizenship for children born after 1947 to Canadian mothers. In essence, the change gave the same entitlement to children born after 1947 of Canadian mothers as those children born after 1947 of Canadian fathers.
The applicant submits that the Benner decision stands for the proposition that it is discriminatory to treat children born outside of Canada to Canadian born mothers as having lesser or different rights to entitlement to citizenship than children born outside of Canada to a Canadian born father.
The respondent submits that the Program Support Officer was correct in declining to apply the Benner decision to the applicant's circumstances. In support of this conclusion, counsel relies on Kelly v. Canada (Minister of Citizenship and Immigration) [1998] F.C.J. No. 1880 (F.C.T.D.), where Dubé J. concluded that the Supreme Court of Canada's decision in Benner dealt only with the constitutionality of paragraph 5(2)(b) of the Citizenship Act and did not entitle persons born abroad prior to 1947 to Canadian Citizenship.
I agree with Dubé J.'s conclusion with respect to the scope of the Benner decision. I understand the decision in Benner as being one in which Canadian citizenship was granted in a different manner depending on the gender of the child's parent. This difference was evidenced by the operation of paragraphs 3(1)(e) and 5(2)(b) of the current Citizenship Act.
In the case at bar, the applicant does not fall within the ambit of paragraph 5(2)(b) nor paragraph 3(1)(d) of the Citizenship Act. As such, the Benner case does not confer on him an entitlement to Canadian citizenship.
ISSUE 3: Does section 15 of the Canadian Charter of Rights and Freedoms apply to the applicant's circumstances?
The applicant has served a notice of constitutional question. The applicant argues that his section 15 Charter rights were violated in that he acquired different rights because of the gender of his parent at the time of his birth.
I am of the opinion that the Charter does not apply in his circumstances for the following reasons.
Counsel for the applicant argues that any section of the legislation that makes a distinction based on the gender of an applicant's parent should be subject to Charter scrutiny.
However, the applicant has not challenged any specific provision of the Citizenship Act. In oral submissions, counsel indicated that the applicant did not challenge the constitutionality of paragraph 5(2)(b) of the Citizenship Act and did not raise a challenge to any other legislative provision.
In any event, I find that the circumstances of this case would involve a retroactive application of the Charter.
The Supreme Court of Canada held in Benner, supra at p. 381 that the Charter does not apply retroactively nor retrospectively. However the Court was also quick to point out that "not every situation involving events which took place before the Charter came into force will necessarily involve a retrospective application of the Charter." The Court goes on to state at p. 383:The question, then, is one of characterization: is the situation really one of going back to redress an old event which took place before the Charter created the right sought to be vindicated, or is it simply one of assessing the contemporary application of a law which happened to be passed before the Charter came into effect?
The applicant was first deported on March 7, 1972 and on 12 subsequent occasions. His appeal of his March 7, 1972 deportation was unsuccessful. The applicant was also the subject of numerous inquiries under the Immigration Act.
At these inquiries, where the person who is the subject of the inquiry claims to be a Canadian citizen and the adjudicator is not satisfied that the person is a Canadian citizen, the inquiry must be adjourned if it is determined that, but for the person's claim of citizenship, a removal order would be made. The adjournment is for the purpose of allowing the person to forthwith make an application for a certificate of citizenship pursuant to subsection 12(1) of the Citizenship Act.
Where a certificate of citizenship is issued, the adjudicator must terminate the inquiry.
At these inquiries, Mr. McLean asserted that he was a Canadian citizen, was given an opportunity to establish his claim and his claim was rejected by the adjudicator on each occasion.
The facts of this case clearly reveal that the applicant was confronted by his citizenship status and had engaged the provisions of the Citizenship Act he now challenges, long before section 15 of the Charter came into force.
Accordingly, the application for judicial review is dismissed.
____________________________
Associate Chief Justice
Ottawa, Ontario
November 4, 1999