SHARLOW J.A.
MALONE J.A.
BETWEEN:
DEBBIE STEPHANIE GIESBRECHT VELETA
BRANDON JAKE GIESBRECHT VELETA
THOMAS ALEXANDER GIESBRECHT VELETA
JOSEPH TOBY GIESBRECHT VELETA
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on April 3, 2006.
Judgment delivered at Ottawa, Ontario, on April 19, 2006.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: SHARLOW J.A.
MALONE J.A.
Date: 20060419
Docket: A-215-05
Citation: 2006 FCA 138
CORAM: SEXTON J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
DEBBIE STEPHANIE GIESBRECHT VELETA
BRANDON JAKE GIESBRECHT VELETA
THOMAS ALEXANDER GIESBRECHT VELETA
JOSEPH TOBY GIESBRECHT VELETA
Appellants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] This is an appeal from a judicial review of a Citizenship Officer's decision to reject applications for proof of Canadian citizenship that had been submitted by the appellants, Debbie Stephanie Giesbrecht Veleta, Brandon Jake Giesbrecht Veleta, Thomas Alexander Giesbrecht Veleta and Joseph Toby Giesbrecht Veleta. In Veleta v. Canada(Minister of Citizenship and Immigration), 2005 FC 572 ["Veleta"], the Federal Court dismissed the appellants' judicial review application. The court below found that since the appellants' grandfather, David Giesbrecht ("David"), was born out of wedlock, he was not entitled to Canadian citizenship. As a result, the applications judge concluded that neither the appellants nor their father-through whom they claimed Canadian citizenship-was entitled to it.
[2] Initially, the appellants challenged this decision on two main grounds. First, they questioned the Federal Court's interpretation of the governing legislation. Second, they asserted that the court below should have found that the Canadian Charter of Rights and Freedoms (the "Charter") entitled them to Canadian citizenship. They abandoned the Charter argument at the hearing of this appeal.
II. FACTUAL BACKGROUND
[3] In the early 1920s, the appellants' paternal great-grandparents, Peter Giesbrecht ("Peter") and Anna Peters ("Anna"), both of whom were born in Canada, moved to Mexico. Peter and Anna wed in a religious ceremony in 1924. Mexican law did not recognize this marriage, because it was not a civil one.
[4] Almost a decade later, in 1933, the appellants' grandfather, David, was born to Peter and Anna in Mexico. Four years after that, in 1937, Peter and Anna wed in a civil marriage ceremony in Mexicothat had the effect of legalizing the earlier religious marriage. Apparently, at that time or shortly thereafter, Peter and Anna requested the legitimation of their children born prior to their civil marriage. The record does not indicate what decision was rendered in respect of this request although there are five pages in Spanish in the record immediately following the document referring to the request for legitimation of the children.
[5] In 1966, David (the grandfather), obtained a certificate of Canadian citizenship with an effective date of September 27, 1957. Almost two decades later, in 1982, David's son, the appellants' father, Jacob Giesbrecht ("Jacob"), also received a certificate of Canadian citizenship. Since Jacob had been born in Mexico, his citizenship claim was based on his father David's status as a Canadian citizen.
[6] The appellants were born outside of Canada between 1993 and 2001. By the time they applied for proof of Canadian citizenship, it had come to the attention of the Minister of Citizenship and Immigration that their grandfather, David, had been born out of wedlock. As a result, the Citizenship Officer concluded that David had not acquired Canadian citizenship under the laws in effect at the time. Consequently, the Citizenship Officer found that David was unable to pass Canadian citizenship on to his descendants. In the Citizenship Officer's view, neither the grandfather David, nor the father Jacob, nor the appellants was entitled to Canadian citizenship.
IV. THE FINDINGS OF THE COURT BELOW
[7] The Federal Court first considered whether Peter and Anna's religious marriage was a valid one for the purposes of Canadian citizenship. The applications judge disposed of this point by observing, inter alia, that the formal validity of a marriage is governed by the law of the country where the marriage contract was entered into (the "lex loci celebrationis"). Therefore, she concluded that David (the grandfather) was born out of wedlock.
[8] The applications judge next turned her attention to whether David (the grandfather) was entitled to Canadian citizenship. First, the court below examined the Naturalization Act, 1914, R.S.C. 1927, c. 138. This was the relevant citizenship legislation in force in Canada at the time of David's (the grandfather's) birth. At that point, there was no such thing as Canadian citizenship, only the status of British subject. The applications judge observed that the Naturalization Act did not allow for a child to acquire British subject status through his or her mother. In fact, in her opinion, the Naturalization Act only permitted a child to acquire British subject status through his or her father and then only if that child was born in wedlock. As a result, she held that David (the grandfather) was an alien as of 1947.
[9] On January 1 of that year, Canadian citizenship was created with the coming into force of the Canadian Citizenship Act, S.C. 1946, c. 15. According to section 4(b) of that Act:
| 4. A person, born before the commencement of this Act, is a natural born Canadian citizen...
(b) if he was born outside of Canada elsewhere than on a Canadian ship and his father, or in the case of a person born out of wedlock, his mother,
(i) was born in Canada or on a Canadian ship 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. |
4. Une personne, née avant l'entrée en vigueur de la présente Loi [avant le 1er janvier 1947], est citoyen canadien de naissance...
b) lorsqu'elle est née hors du Canada ailleurs que sur un navire canadien et que son père ou, dans le cas d'une personne née hors du mariage, sa mère
(i) est né (ou née) au Canada ou sur un navire canadien et n'était pas devenu étranger (ou devenue étrangère) lors de la naissance de ladite personne, ou
... si, avant l'entrée en vigueur de la présente Loi, ladite personne n'était pas devenue étrangère, et a été licitement admise au Canada en vue d'une résidence permanente ou est mineure. |
[10] In the court below, the appellants argued that their grandfather, David, satisfied the requirements of this provision. Among other things, on January 1, 1947, David had not "become" an alien. After all, he had been one since birth.
[11] The applications judge refused to accept this interpretation of the words "has not become an alien." Instead, she concluded that this phrase meant "was not an alien." Therefore, the Canadian Citizenship Act did not entitle David (the grandfather) to citizenship.
[12] The Federal Court concluded its decision by considering whether the Charter or the Bill of Rights entitled the appellants to Canadian citizenship. In the application judge's view, neither of these instruments was of assistance to the appellants. She refused to hear the appellants' Charter claim on the grounds that they were trying to rely on the infringement of someone else's rights-those of their grandfather, David-for their own benefit. According to the applications judge, the appellants were seeking to give the Charter retroactive effect by attempting to confer citizenship
upon their grandfather, David. The applications judge also concluded that the Bill of Rights did not further the appellants' case, since it could not be applied retroactively.
[13] During the hearing of this appeal, the court was informed by counsel that the appellants' father, Jacob, had commenced an application for a judicial review of the respondent's statement that he was not a Canadian citizen. His affidavit in the record in this court indicates that he was shocked when he learned that he was no longer considered a Canadian citizen. After all, his citizenship had been recognized in 1982 based on his father's (David's) citizenship and as recently as October 2001, he had received confirmation from the respondent that he was a Canadian citizen. Jacob only learned that the respondent had changed his position when he saw a copy of a letter from the respondent to the appellants' lawyer that denied citizenship to the appellants on the basis that neither Jacob nor David was considered a Canadian citizen.
[14] The court was further informed that Jacob's (the father's) application in the Federal Court had been adjourned sine die, pending a decision in this appeal.
[15] It is surprising, at the very least, that Jacob (the father) was given no formal notice that he was no longer considered a Canadian citizen. Counsel for the respondent indicated to the court that it was standard practice for the respondent not to formally notify persons of the loss of their
citizenship, but rather to wait until such persons either requested a certificate of citizenship or the issuance of a passport before informing them.
[16] The Court, upon learning of this practice, requested counsel for the respondent to furnish the statutory or regulatory authority for this practice.
[17] Upon questioning by the Court, it was revealed by counsel that the grandfather (David) was still alive and that he also had been given no notice, whatsoever, by the respondent that he was no longer considered a Canadian citizen. Subsequent to the hearing, the Court was advised that David has been residing in Canada since 1967.
[18] Subsequent to the hearing, counsel for the respondent, in response to the Court's request, submitted section 26 of the Citizenship Regulations, 1993, SOR/93-246. It provides as follows:
| 26 (1) The Registrar may, in writing, require a person to surrender to the Registrar any certificate of naturalization, certificate of citizenship, miniature certificate of citizenship or other certificate of citizenship that contains the person's photograph, or certificate of renunciation, issued or granted to the person under the Act or prior legislation or any regulations made thereunder if there is reason to believe that the person may not be entitled to the certificate or has violated any of the provisions of the Act, and the person shall forthwith comply with the requirement. 26(2)
(2) Where the Registrar is of the opinion that the holder of a certificate of naturalization, certificate of citizenship, miniature certificate of citizenship or other certificate of citizenship that contains the holder's photograph, or certificate of renunciation, contravened any provision of the Act, the Registrar shall cause to be retained any certificate surrendered to the Registrar by that person until that certificate is no longer required as evidence in any legal proceedings that may be instituted in consequence of the alleged contravention. 26(3)
(3) Where the Minister has determined that the holder of a certificate of naturalization, certificate of citizenship, miniature certificate of citizenship or other certificate that contains the holder's photograph, or certificate of renunciation, issued or granted under the Act or prior legislation or any regulations made thereunder is not entitled to the certificate, the Registrar shall cancel the certificate. 26(4)
(4) The Registrar shall forthwith return the certificate to the person where the Minister has determined that the person is entitled to the certificate. |
26.(1) Le greffier peut ordonner par écrit à une personne de lui restituer tout certificat de naturalisation, certificat de citoyenneté, certificat de citoyenneté petit format ou autre certificat de citoyenneté portant sa photographie, ou certificat de répudiation qui lui a été délivré ou attribué en vertu de la Loi ou la législation antérieure ou rapportant en application de leurs règlements lorsqu'il y a des raisons de croire qu'elle n'y a pas droit ou a enfreint l'une des dispositions de la Loi. En pareil cas, la personne doit sans délai obtempérer. 26(2)
(2) Lorsque le greffier est d'avis que le titulaire d'un certificat de naturalisation, d'un certificat de citoyenneté, d'un certificat de citoyenneté petit format ou autre certificat de citoyenneté portant sa photographie, ou d'un certificat de répudiation a enfreint l'une des dispositions de la Loi, il fait retenir tout certificat que cette personne lui aura restitué jusqu'à ce que ce certificat ne soit plus requis comme preuve dans des poursuites judiciaires qui peuvent être entamées par suite de la prétendue infraction. 26(3)
(3) Lorsque le ministre a déterminé que le titulaire d'un certificat de naturalisation, d'un certificat de citoyenneté, d'un certificat de citoyenneté petit format ou autre certificat de citoyenneté portant sa photographie, ou d'un certificat de répudiation délivré ou attribué en vertu de la Loi ou de la législation antérieure ou en application de leurs règlements n'a pas droit à ce certificat, le greffier annule le certificat. 26(4)
(4) Le greffier renvoie sans délai le certificat à la personne lorsque le ministre détermine qu'elle y a droit. |
[19] Although subsection 26(1) says that the Registrar "may" require a person to surrender a certificate of citizenship if he believes the person may not be entitled to it, the balance of the section indicates that the Registrar, upon receipt of the certificate, is obliged to decide the issue of entitlement. If the Registrar decides the person is entitled, the certificate is returned [subsection 26(4)]. If the person is deemed not entitled then the Registrar "shall cancel the certificate" [subsection 26(3)].
[20] There is no evidence that any of the steps set out in section 26 were followed in the present case with regard to the citizenship of David or Jacob.
[21] Both Jacob (David's son) and the appellants (David's grandchildren) relied on David's status as a Canadian citizen for their claim to citizenship. Thus, it is necessary in both of those proceedings to establish whether David was a Canadian citizen at the relevant time. Indeed, in the case before this court, the applications judge determined that David was never entitled to become a Canadian citizen.
[22] Thus, David (the grandfather) is in the position of having the courts deliberate upon and decide whether he ever became a Canadian citizen, in spite of his having been issued a certificate of Canadian citizenship approximately 40 years ago and in spite of his never having been notified by the respondent that he is no longer considered a citizen.
[23] I find this an intolerable situation. Procedural fairness demands that David (the grandfather) be given a chance to appear and make representations as to his right to Canadian citizenship.
[24] I also have considered that the present state of the two sets of proceedings would permit this court to dismiss the present appeal on the basis that Jacob (the father) was no longer a citizen and therefore the appellants could not become citizens. At some later time, the Federal Court, on the evidence before it, could conceivably conclude that Jacob (the father) had not lost his Canadian citizenship, thus producing inconsistent verdicts. This is a most unsatisfactory state.
[25] Consequently, the appeal should be allowed, the decision of the applications judge set aside and the matter remitted to the Federal Court for redetermination.
[26] This file should be consolidated with the file relating to Jacob (the father) so as to avoid inconsistent verdicts.
[27] The respondent shall immediately give notice to David (the grandfather) of these proceedings and David shall be permitted to appear and make representations.
[28] It would be preferable if these proceedings could be proceeded with in an expeditious manner.
[29] In view of the fact that these issues were not raised by the appellants, but rather by the court, there will be no costs of this appeal.
"J. Edgar Sexton"
"I agree
K. Sharlow J.A.".
"I agree
B. Malone J.A.".
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-215-05
STYLE OF CAUSE: DEBBIE STEPHANIE GIESBRECTH VELETA ET AL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 3, 2006
REASONS FOR JUDGMENT BY: SEXTON J.A.
MALONE J.A.
APPEARANCES:
Mr. Gregory J. Willoughby for the Appellants
Mr. Negar Hashemi for the Respondent
Ms. Martina Karvellas
SOLICITORS OF RECORD:
Gunn & Associates for the Appellants
Barristers & Solicitors
St. Thomas, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada for the Respondent
Toronto, Ontario